IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120005484 


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, in effect, correction of her separation document to show she was honorably released from active duty training (ADT).

2.  The applicant states she performed all of her duties honorably even after she was injured and assigned to perform duties based on the needs of the Army.  She was unaware of how an uncharacterized discharge would affect her eligibility for veterans' benefits.

3.  The applicant provides a copy of her 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 enlisted in the Army National Guard of the United States on
7 March 1990 for a period of 8 years with the option for training in military occupational specialty (MOS) 91A (Medical Equipment Repairer).

3.  Military Entrance Processing Station, San Antonio, Texas, Orders 044-012, dated 7 March 1990, ordered the applicant to Initial Active Duty for Training (IADT) on 12 March 1990 for a period of approximately 20 weeks or completion of basic and advanced individual training in MOS 91A.

4.  A review of the applicant's military personnel records failed to reveal any evidence that she completed IADT in MOS 91A.

5.  The applicant's military personnel records do not contain a copy of her Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) proceedings.

6.  A DD Form 214 shows the applicant entered IADT on 12 March 1990 and she was released from ADT under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph
4-24e(3), based on physical disability with severance pay and her service was uncharacterized.  She completed 11 months and 26 days of net active service during this period.

7.  Army Regulation 635-40, in effect at the time, governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Chapter 4 (Procedures), paragraph 4-24e(3), provides for separation of Soldiers for physical disability with severance pay.

8.  Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 (Character of Service/Description of Service) provides in:

   a.  paragraph 3-7 (Types of administrative discharges/character of service):

    	(1)  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.  Only the honorable characterization may be awarded to a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry-level status separation (uncharacterized) is warranted (emphasis added): and

    	(2)  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.

   b.  Paragraph 3-9 (Uncharacterized separations) provides that a separation will be described as an entry level separation if processing is initiated while a member is in entry level status.
	
	c.  Section II (Terms) of the glossary states that for Reserve Component (RC) Soldiers, entry-level status begins upon enlistment in a RC.  For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training.  For purposes of characterization of service or description of separation, the member's status is determined by the date of notification to the member as to the initiation of separation proceedings.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she was honorably released from ADT because she performed all of her duties honorably and the determination that her service was "uncharacterized" adversely affects her eligibility for veterans' benefits.

2.  Records show the applicant was ordered to IADT on 12 March 1990.  There is no evidence she completed the training for which she was ordered to IADT.

3.  The evidence of record shows the applicant was released from ADT based on physical disability.  Thus, it is reasonable to conclude that she was processed through the U.S. Army's Physical Disability Evaluation System (PDES).

4.  The applicant's MEB/PEB proceedings are not available to the Board. However, the evidence of record shows that for purposes of characterization of 


service or description of separation, the member's status is determined by the date of notification to the member as to the initiation of separation proceedings (emphasis added).  Thus, in the absence of evidence to the contrary it is presumed that the applicant was notified of the initiation of processing under the PDES while she was in an entry-level status (i.e., prior to her completing 180 days of the period for which she was ordered to IADT).

5.  The evidence of record shows that an entry-level status Soldier's separation with be "uncharacterized."

6.  The regulations governing the Board's operation require that the separation process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of separation and character of service directed ("uncharacterized") appear to have been, and still are, appropriate.

7.  Therefore, in view of the foregoing, the applicant is not entitled to correction of her records to show her character of service for the period under review was honorable or under honorable conditions.

8.  The ABCMR does not grant requests for upgrade of separations/discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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)                                         AR20120005484



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ABCMR Record of Proceedings (cont)                                         AR20120005484



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