IN THE CASE OF:	  

		BOARD DATE:	    6 September 2011

		DOCKET NUMBER:  AR20110004129 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the characterization of service on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from uncharacterized to honorable.

2.  The applicant states he was told his separation code is incorrect and that it pertains to females. 

3.  The applicant provides:

* DD Form 214
* Letter of thanks
* Order for initial active duty for training (IADT)
* Court order for a name change
* Certificate of birth

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, 
has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the U.S. Army Reserve on 2 October 1985.  He was ordered to IADT on 4 December 1985 and he was subsequently reassigned to Fort Leonrad Wood, MO, for completion of basic combat and advanced individual training.  He was assigned to Company F, 3rd Battalion, 4th Training Brigade. 

3.  His records contains an extensive history of negative counseling by his chain of command for various infractions including poor motivation, lack of respect, loss of control, making threatening accusations, disrespecting a senior noncommissioned officer, various trainee violations, a negative attitude, refusal to train, poor personal appearance and/or military bearing, smoking without permission, poor adaptability, poor performance, and multiple other infractions. 

4.  On 25 February 1986, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of chapter 11 (Entry Level Status), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) by reason of lack of motivation and discipline necessary to be a productive Soldier.  He was further advised that if the request for separation was approved he would receive an entry level status character of service.

5.  On 28 February 1986, the applicant acknowledged receipt of the uncharacterized entry level separation notification action in accordance with chapter 11 of Army Regulation 635-200.  He waived his right to consulting counsel, declined a separation medical examination, and elected not to submit a written statement in his own behalf.

6.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 11 of Army Regulation 635-200.  The immediate commander noted that the applicant:

* was counseled by his chain of command but failed to improve
* lacked discipline and self motivation to become a productive Soldier
* had a very negative and adverse impact on the unit
* had received two instances of nonjudicial punishment for multiple infractions
* was unable to function in a disciplined environment
* could not respond to the conventional means the Army uses to alleviate his disciplinary problems
* had been a marginal performer throughout training 
7.  On 7 March 1986, the separation authority approved the applicant's discharge from the Army in accordance with chapter 11 of Army Regulation 635-200, by reason of entry level performance and conduct with an uncharacterized discharge.  Accordingly, the applicant was discharged on 11 March 1986.  

8.  The DD Form 214 he was issued confirms he was discharged in accordance with chapter 11 of Army Regulation 635-200 with an uncharacterized character of service.  This form also shows he completed 3 months and 8 days of creditable active military service.  Item 26 (Separation Code) of this form shows the entry "LGA." 

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Chapter 11 of this regulation, in effect at the time, governed the entry level status discharge.  It provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on the job or service school training, and must not have completed of more than 179 days of active duty on their current enlistment by the date of separation.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.

11.  Army Regulation 635-200, chapter 3, describes the different types of characterization of service.  It states in pertinent part that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code LGA, in effect at the time, was the correct code for Soldiers separating under the provisions of chapter 11-3 (Entry Level Status) of Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that, while in training, the applicant appears to have lacked motivation and self-discipline and showed an inability to adjust to the military environment.  Accordingly, his immediate commander recommended that he be separated under the provisions of chapter 11 of Army Regulation 635-200. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his separation accurately reflects his overall record of service.

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other-than-honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  A general characterization of service is not authorized.

3.  The entry-level separation is given regardless of the reason for separation.  An uncharacterized discharge is neither positive nor negative; it is not "derogatory."  An uncharacterized character of service is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request to upgrade his discharge.

4.  His separation code was assigned based on the fact that he was separated under the provisions of paragraph 11-3 of Army Regulation 635-200 by reason of entry level status performance and conduct.  The appropriate separation code associated with this type of discharge is "LGA."  Therefore, he received the appropriate separation code associated with his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X__________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110004129



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ABCMR Record of Proceedings (cont)                                         AR20110004129



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