IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110018683 


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 the characterization of his discharge be changed from uncharacterized to honorable.

2.  The applicant states he was unable to complete basic training due to a physical profile at the end of basic training.  He was unable to start week 1 of the training over because his injury was not improving and the civilian working for the Army stole his identity and committed fraud using his name.

3.  The applicant provides:

* DD Form 689 (Individual Sick Slip)
* DA Form 3349 (Physical Profile)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  He enlisted in the Regular Army on 15 February 1996 for a period of 3 years.  He did not complete basic combat training.

3.  The DA Form 3349, dated 26 March 1996, submitted by the applicant indicates he received a temporary physical profile for a stress fracture to his right tibia to expire on 26 May 1996.

4.  The DD Form 689, dated 19 April 1996, submitted by the applicant indicated he was to be scheduled for a bone scan.

5.  His Military Personnel Records Jacket contains seven DA Forms 4856 (General Counseling Form) showing he was formally counseled from March through June 1996 for:

* failure to comply with the platoon's standard operating procedures – failed to shave
* failure to pass a written test and lack of motivation and dedication
* lack of motivation/lack of intestinal fortitude – failed a platoon run
* inability to participate in all the training activities necessary to complete training due to his profile – recommended he be restarted with another unit to begin training in week 9
* lack of motivation and immaturity on his part – he stated he did not want to restart training and he "did not want to be here or part of the Army"
* recommendation he be discharged with an entry-level separation
* entry-level discharge – he had been released from his physical profile and returned to full duty but refused to restart training

6.  His commander notified him he was initiating action to separate him from active duty under the provisions of paragraph 11-2 of Army Regulation 635-200 (Personnel Separations).  His specific reasons for his proposed actions were the applicant:

* could not or would not adapt socially to military life
* could not meet the minimum standard prescribed for successful completion of training because of lack of motivation

7.  He advised the applicant that due to his failure to compete his enlistment, Department of Veterans Affairs and other benefits would be affected.  He would not be permitted to reenlist for a period of 2 years from the date of his separation.

8.  His commander advised him he had the right to:

* consult with military legal counsel or civilian counsel (at his own expense)
* submit statements in his own behalf
* request a separation medical examination
* obtain copies of the documents supporting his separation that would be sent to the separation authority
* waive his rights in writing

9.  He did not submit statements in his own behalf and waived his remaining rights.

10.  His commander recommended his discharge.  His specific reasons for his proposed actions were the applicant:

* could not or would not adapt socially to military life
* could not meet the minimum standard prescribed for successful completion of training because of lack of motivation

11.  The appropriate authority approved him for discharge under the provisions of chapter 11 of Army Regulation 635-200.  A waiver of rehabilitative transfer was approved.  The applicant had no potential for full mobilization.

12.  On 11 June 1996, he was discharged.  He completed 3 months and 27 days of active service that was uncharacterized.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  When a Soldier's conduct or performance became unacceptable, the commander ensured that a responsible official formally notified the Soldier of his or her deficiencies.  At least one formal counseling was required before separation proceedings could be initiated and there must have been evidence that the Soldier's deficiencies continued after the initial formal counseling.

	b.  Soldiers undergoing initial entry or other training were to be recycled (reassigned between training companies or, where this is not feasible, between training platoons) at least once.

	c.  Chapter 11 provided for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry-level status.  This provision of the regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  The regulation required uncharacterized service for separation under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  He contends a civilian working for the Army stole his identity and committed fraud using his name.  However, he provided no evidence to substantiate this contention or indicating how this affected his refusal to restart his training.

2.  He was formally counseled on seven occasions concerning his deficiencies.  He had missed training due to his temporary physical profile and when his profile expired he refused to restart his training.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The regulation under which he was processed for discharge required that his service be uncharacterized.

5.  In view of the above, there is no basis to change the characterization of his service.

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 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)                                         AR20110018683



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ABCMR Record of Proceedings (cont)                                         AR20110018683



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