BOARD DATE: 4 October 2012
DOCKET NUMBER: AR20120006440
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 uncharacterized discharge.
2. The applicant states he had previously served and completed military occupational specialty (MOS) school and he was denied leave when his mother took ill. He states he wanted to be discharged because he could not take leave. He claims he tried going to the Department of Veterans Affairs (VA) hospital and found out he had no benefits. Although he was discharged so he could go to see his mother he did not sign away his benefits.
3. The applicant provides separation documents and class completion papers in support of his request.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After previously serving in the U.S. Army Reserve (USAR) between 17 April 1990 and 27 March 1991, the applicant enlisted in the Regular Army on 28 March 1991.
3. On 17 September 1991, the unit commander notified the applicant that action was being initiated to separate him under the provisions of paragraph 11-3a, Army Regulation 635-200, by reason of entry level performance and conduct. The unit commander cited the applicants failure to adapt to the military and his inability to resolve his personal problems. The unit commander recommended an entry level separation (ELS).
4. The applicant acknowledged the unit commanders notification and requested immediate discharge. He also elected not to submit a statement in his own behalf.
5. On 20 September 1991, the separation authority approved the applicants ELS. On 2 October 1991, the applicant was discharged accordingly. He had completed 5 months and 19 days of continuous active service.
6. There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that boards 15 year statute of limitations.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-9 contains guidance on entry level separations. It 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.
8. Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS. An uncharacterized service description is normally granted to Soldiers separating under this chapter. A general discharge (GD) under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge (HD) 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 applicants request to change his uncharacterized discharge has been carefully considered. However, there is insufficient evidence to support this claim.
2. The evidence of record confirms the applicants 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 applicant requested immediate discharge and elected not to submit statements in his own behalf at the time of his discharge processing. He was separated prior to completing 180 days of continuous active service. Absent any evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support a change to his discharge at this late date.
4. The applicant is advised that eligibility for benefits administered by the VA is within that agencys purview. In addition, eligibility for benefits is not a basis to support an upgrade of a discharge.
5. In view of the above, there is an insufficient evidentiary basis to support granting the 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) AR20120006440
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