IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110023790 


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 an upgrade of his discharge to an honorable discharge (HD).  In a separate correspondence, the applicant also requested correction of his records to show he received his General Education Diploma (GED).

2.  The applicant states his discharge was supposed to be corrected to an honorable discharge but he never received it.  He further states the correction will be the interest of fairness and justice.

3.  The applicant provides a one-page statement in support of his application.

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 Regular Army on 5 March 1986.  He completed basic training at Fort Jackson, South Carolina, in May 1986.  Upon completion of basic training, he was assigned to Fort Gordon, Georgia, to attend advanced individual training in military occupational specialty 31M (Multichannel Communications Equipment Operator).  His record documents no acts of valor or significant achievement.

3.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 18 July 1986, for wrongful use of provoking actions.  His record also contains formal counseling for duty performance and counseling-related deficiencies on eight separate occasions between 23 June 1986 and 28 July 1986.

4.  On 28 July 1986, the applicant was formally counseled by his unit commander based on the applicant’s duty performance and conduct.  He further counseled the applicant regarding his intent to initiate action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, by reason of entry-level performance and conduct.  The applicant concurred with the counseling session.

5.  On 31 July 1986, the unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 11.  The unit commander cited the applicant’s substandard duty performance and failure to adapt emotionally to military life.

6.  On 31 July 1986, the applicant completed an election of rights in which he indicated he did not desire to consult with counsel and/or to make statements in his own behalf.

7.  On 4 August 1986, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, and directed the applicant’s service be described as "Uncharacterized."

8.  On 7 August 1986, the applicant was discharged after completing 5 months and 3 days of active military service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated under the provisions of Army Regulation 635-200, chapter 11 by reason of entry-level status performance and conduct.

9.  The applicant's records contained a DD Form 1966 (Record of Military Processing - Armed Forces of the United States) which shows he did not graduate from high school.  Item 16 (High School Graduate or Equivalent) of his DD Form 214 shows "No." 

10.  The applicant submitted a one-page statement indicating he obtained his GED while serving and would like to have it reflected on his DD Form 214.

11.  The applicant's records did not contain any documentation nor did the applicant provide any to show he received the GED during his military service.

12.  There is no evidence indicating the applicant applied to the Army Discharge Review Board for a change to his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

	b.  Chapter 11 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry-level status.  An uncharacterized service description is normally granted to Soldiers separating under this chapter. A general discharge is not authorized under entry-level status conditions and an honorable discharge is rarely ever granted.  An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for his entry level status discharge to be upgraded to an HD and to show he received a GED has been carefully considered.  However, there is insufficient evidence to support these claims. 

2.  The evidence of record confirms the applicant's separation action was initiated while he was in an entry-level status prior to completing 180 days of continuous active military service.  The record further shows his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.


3.  The record also shows the applicant's service was described as uncharacterized as a result of being separated while in an entry-level status.  A Soldier is in an entry-level status, or probationary period, for the first 180 days of continuous active duty and the issuance of a general discharge to a member in such status is not authorized.  An HD may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  Given no such unusual circumstances are present in the applicant's record, there is an insufficient evidentiary basis to support any change to the description of his service as uncharacterized.

4.  The evidence of record does not show he received a GED while in the Army and he has not shown otherwise.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110023790





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ABCMR Record of Proceedings (cont)                                         AR20110023790



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