BOARD DATE: 13 December 2012
DOCKET NUMBER: AR20120009770
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 his discharge be upgraded to honorable.
2. The applicant states he needs his discharge changed so that he may be eligible to join the United Services Automobile Association (USAA) and obtain a Department of Veterans Affairs (VA) loan eligibility statement.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).
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. The applicant's records show he enlisted in the Regular Army on 9 March 1995. He completed basic training at Fort Knox, KY. On 15 May 1995, he was assigned to the 447th Signal Battalion, 15th Regimental Signal Brigade, Fort Gordon, GA, for advanced individual training.
3. Between 18 May and 7 August 1995, he was counseled by his drill sergeants for failing a diagnostic Army Physical Fitness Test (APFT) and two end-of-course (EOC) APFTs.
4. On 8 August 1995, he was notified by his immediate commander of the commander's intent to initiate separation against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, entry level status, for failing the APFT.
5. On 8 August 1995, he acknowledged receipt of the discharge action that was being initiated against him under the provisions of Army Regulation 635-200, chapter 11. He was advised of the effect on future enlistment in the Army, the possible effects of an uncharacterized entry level separation, and of the procedures and rights that were available to him. He waived his right to consult with legal counsel and declined to submit a statement in his own behalf.
6. On 9 August 1995, his immediate commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 11, for failing the APFT. The commander stated he had failed 2 EOC APFTs and had been counseled and coached by his drill sergeants due to his poor performance. He had been given the knowledge and tools to pass the APFT but he lacked the mental fortitude and determination to do so.
7. The separation authority subsequently approved the applicant's discharge action under the provisions of Army Regulation 635-200, chapter 11 with an entry level separation.
8. On 25 August 1995, the applicant was discharged accordingly.
9. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct with an uncharacterized service. He completed 5 months and 17 days of net active service.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. Paragraph 11a, of the version in effect at the time, provided for the separation of personnel due to unsatisfactory performance, conduct, or both, as evidenced by inability while in an entry level status.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant's separation action was initiated due to his inability to adapt to military service as evidenced by his repeated failure of the APFT. He was separated prior to completing 180 days of active service, while he was still in an entry-level status. Therefore, he correctly received an uncharacterized character of service.
2. The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for VA or other benefits. Every case is individually decided based upon its merits when an applicant requests a correction to his military records.
3. In view of the foregoing, there is no basis for 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.
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