IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110023636 


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:

* amendment of his character of service from uncharacterized to general under honorable conditions
* credit for his service in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP)

2.  The applicant states:

* He is missing 232 days of DEP time that should have counted toward fulfillment of his total active time
* his DEP time should have counted according to his enlistment contract
* he believes this is a clerical error

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* 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.  The applicant's records show he enlisted in the USAR under the DEP for a period of 8 years on 27 January 1990.  Item 8 (Agreements) of his DD Form 4 shows the entry, "My enlistment in the DEP is in a nonpay status.  I understand my period of time in the DEP is NOT creditable for pay purposes upon entry into a pay status.  However, I also understand that this time is counted toward fulfillment of my military service obligation or commitment."  He authenticated this form by placing his signature in the appropriate block.

3.  His records further show he remained in the DEP for a period of 7 months and 23 days (235 days) until he was discharged from the DEP on 18 September 1990 to enlist in the Regular Army.  He enlisted in the Regular Army for a period of 4 years on 19 September 1990.

4.  He completed basic combat training at Fort Jackson, SC, and he was reassigned to Fort Gordon, GA, for advanced individual training (AIT).  He was assigned to Company C, 369th Signal Battalion.

5.  On 25 February 1991 while in AIT, 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, by reason of entry-level status, specifically due to his inability to adjust to military life.  He was further advised that if the recommendation for separation were approved, he would receive an entry-level separation with uncharacterized service.

6.  On 25 February 1991, he acknowledged receipt of the notification separation action in accordance with Army Regulation 635-200, chapter 11.  He indicated that:

* he did not desire to consult with counsel
* he did not desire to submit a statement in his own behalf
* he waived his right to a separation medical examination

7.  Subsequent to the applicant's acknowledgment, his immediate commander initiated separation action against him in accordance with Army Regulation 
635-200, chapter 11.  He indicated the applicant could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, and self-discipline.

8.  On 26 February 1991, the separation authority approved the applicant's discharge from the Army in accordance with Army Regulation 635-200, chapter 11, with uncharacterized service.  Accordingly, the applicant was discharged on 1 March 1991.

9.  His DD Form 214 confirms he was discharged in accordance with Army Regulation 635-200, chapter 11 with an uncharacterized character of service.  This form also shows in:

* item 6 (Reserve Obligation Termination Date) – "00  00  00"
* item 12a (Date Entered Active Duty This Period) – "90  09  19"
* item 12b (Separation Date This Period) – "91  03  01"
* item 12c (Net Active Service This Period) – 00  05  01"
* item 18 (Remarks) – "Delayed Entry Program:  900127-900918"

10.  There is no indication he applied to the Army Discharge Review Board for a change to his character of service within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or 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 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.  This chapter applied to Soldiers who were in an entry-level status and completed no more than 180 days of continuous active duty before the date of the initiation of separation action.  The regulation required an uncharacterized description of service for separation under this chapter.

12.  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 an entry-level status, except when characterization under other than honorable conditions 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.

	a.  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.

	b.  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.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item preparation instructions for the DD Form 214 as follows:

* item 6 shows the completion date of the statutory military service obligation (MSO) incurred by a Soldier on initial enlistment in the Armed Forces – the MSO starts on the date of initial enlistment to include the DEP – DEP time is credited in computing this date
* item 12a shows the date of entry on active duty
* item 12b shows the Soldier's transition/separation date
* item 12c shows all active service, less lost time

14.  Army Regulation 635-5 states DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in item 12c.  However, it is creditable service for completing the statutory mandatory service obligation and will be entered in item 18.


DISCUSSION AND CONCLUSIONS:

1.  With respect to his DEP time:

	a.  He enlisted in the DEP on 27 January 1990 and he was discharged from the DEP on 18 September 1990.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes; however, it is creditable service for completing the statutory MSO and will be entered in item 18.

	b.  He enlisted in the Regular Army on 19 September 1990.  This is the date he entered active duty.  He was discharged from active duty on 1 March 1991.  Since he was discharged (complete severance from all military status gained by the enlistment) he no longer had an MSO.  Thus, the entry in item 6 of his DD Form 214 appropriately shows no date.

2.  With respect to his character of service:

	a.  The available evidence shows that while in training, he was unable to adapt to military life.  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.

	b.  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 a discharge under other than honorable conditions.  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 this characterization must be approved by the Secretary of the Army.

	c.  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 served on active duty long enough for his/her character of service to be rated.

3.  As a result, there is no basis for granting his request.


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)                                         AR20110023636



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ABCMR Record of Proceedings (cont)                                         AR20110023636



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