IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110016873 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his:

* Characterization of service from uncharacterized to honorable
* Narrative reason for separation from entry level status to completion of required service
* Reentry eligibility (RE) Code from N/A (Not Applicable) to RE-3

2.  The applicant states he completed basic training at Fort Benning, GA, and he was reactivated for advanced individual training under the split option program.  He was on a physical profile due to a stress fracture in his legs and his feet and he could not perform physical fitness training.  As a result, he was separated with an uncharacterized discharge.

3.  The applicant did not provide any evidence.

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 enlisted in the Georgia Army National Guard (GAARNG) under the split option program on 10 October 1990.  He subsequently completed basic training at Fort Benning from 31 January to 17 May 1991 and he returned to the control of the GAARNG.

3.  While in basic training, he injured his left foot but he did not seek treatment.  He was ultimately seen in an outpatient status at Martin Army Community Hospital, Fort Benning, in March 1991.  He was issued a temporary physical profile.

4.  On 22 July 1992, he was ordered to active duty for training (ADT) for completion of advanced individual training and he was assigned to Company B, 1st Battalion, 38th Infantry, Fort Benning.

5.  His record contains a history of negative counseling by his chain of command for various infractions including drinking alcohol while on pass, repeated violation of regulations, and departing his unit in an absent without leave (AWOL) status.

6.  On 15 September 1992, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction of duties.

7.  On 1 October 1992, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11 (Entry Level Status), by reason of inability to meet the physical demands of the infantry and lack of discipline.  He was further advised that if the request for separation was approved he would receive an entry level status character of service.

8.  On 2 October 1992, the applicant acknowledged receipt of the separation notification action in accordance with Army Regulation 635-200, chapter 11.  He waived his right to consulting counsel and he elected not to submit a statement in his own behalf.

9.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation
635-200, chapter 11.

10.  On 4 October 1992, he departed his training unit in an AWOL status.  An informal investigation was conducted but yielded no results.  He ultimately returned to military control on 2 November 1992.

11.  On 4 November 1992, the separation authority approved the applicant's separation from the Army in accordance with Army Regulation 635-200,
chapter 11, by reason of entry level performance and conduct with an uncharacterized discharge.  Accordingly, on 17 November 1992, the applicant was released from ADT/discharged as a Reserve of the Army and transferred to the GAARNG.  Effective the same date, he was separated from the GAARNG.

12.  The DD Form 214 he was issued at the time confirms he was released from ADT in accordance with Army Regulation 635-200, chapter 11, with an uncharacterized character of service.  This form also shows he completed 2 months and 28 days of creditable active service.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JGA" and item 27 (RE Code) shows the entry "N/A (Not Applicable)."

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

14.  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.  The regulation required an uncharacterized description of service for separation under this chapter.

15.  Army Regulation 635-200, chapter 3, describes the different types of characterization of service.  It states 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 the purposes of characterization of service, the Soldier’s status is determined by the date of notification as to the initiation of separation proceedings.  Entry level status is defined as follows:

	a.  Upon enlistment, a Soldier qualifies for entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active service after a service break of more than 92 days of active service.

	b.  A member of a Reserve Component (RC) who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry level status upon enlistment in an RC.  Entry level status for such a member of an RC terminates as follows:

* 180 days after beginning training if the Soldier is ordered to Active Duty for Training (ADT) for one continuous period of 180 days or more
* 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into two or more separate periods of active duty

16.  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.

17.  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.

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  A DD Form 214 will be prepared for selected categories of military personnel including RC Soldiers completing 90 days or more of continuous active duty for training, Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service.  Item 27 of the DD Form 214 provides that Army Regulation 601-210 (Active and Reserve Components Enlistment Program) determines Regular Army (RA) and U.S. Army Reserve (USAR) reentry eligibility and provides regulatory guidance on the
RE codes.  These codes are not applicable to officers, U.S. Military Academy (USMA) cadets who fail to graduate or enter the USMA from active duty status, or to RC Soldiers being separated for other than cause.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JGA.

20.  Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

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 his separation under the provisions of Army Regulation 635-200, chapter 11.  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 (or 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into two or more separate periods of active duty), 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 the Soldier has not been in the Army long enough for his/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 change his character of service to either an honorable or a general discharge.

4.  His separation code was assigned based on his release from ADT under the provisions of Army Regulation 635-200, chapter 11, due to his entry level performance and conduct.  The underlying reason for his discharge was his conduct/performance during entry level status.  The only valid narrative reason for separation permitted under that chapter is "Entry Level Status."

5.  The appropriate separation code associated with this type of discharge is "JGA" and the corresponding RE code associated with this discharge would normally be RE-3.  Normally, as a member of the ARNG, the appropriate entry in the RE Code block is "NA."  However, since he was discharged for cause, he should have received an RE code.  The appropriate RE code associated with the separation code he received is RE-3.  Therefore, his DD Form 214 should be corrected to show RE-3 in lieu of the "NA" entry.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 27 of his DD Form 214 the entry "NA" and adding the entry "3." 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the 

* Characterization of service from uncharacterized to honorable
* Narrative reason for separation from entry level status to completion of required service



      ____________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)                                         AR20110016873



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ABCMR Record of Proceedings (cont)                                         AR20110016873



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