IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120010301 


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 the characterization of his service be changed from uncharacterized to honorable.

2.  The applicant states he was told he would be getting an honorable discharge for leaving voluntarily but only his Reserve discharge was honorable.

3.  The applicant provides no additional evidence 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.  He enlisted in the Regular Army on 1 December 1982 for 3 years.  He completed basic combat training.  On 1 February 1983, he was ordered to report 
to advanced individual training (AIT) for completion of military occupational specialty 94B (Food Service Specialist), with a report date of 19 February 1983.

3.  His Military Personnel Records Jacket (MPRJ) contains three DA Forms 4856 (General Counseling Form) showing he was formally counseled 2 - 8 March 1983.

	a.  On 2 March, he was counseled by a sergeant (SGT)/pay grade E-5 concerning his attitude, self bearing, discipline, lack of military standards, and immaturity.  The SGT recommended he be recycled into another class or eliminated from the Army.  The applicant nonconcurred because he admitted that he had an attitude but not anymore.  He now understood what AIT was all about and he would train with the best of his ability.

	b.  On 6 March, he was counseled by a SGT concerning his failure to obey an order given by a noncommissioned officer.  The SGT stated his failure to obey orders displayed his lack of military bearing and self-discipline.  He recommended disciplinary action be taken under the Uniform Code of Military Justice.  The SGT also recommended if he must be counseled a second time for the same offense or related offenses that he be eliminated from active military service under the Trainee Discharge Program (TDP).  The applicant made no statement concerning this counseling session.

	c.  On 8 March, he was counseled by the first sergeant (1SG) because his attitude continuously demonstrated behavior characteristics that were not compatible with military service.  He was counseled on the TDP and he understood the program.  Due to the applicant's attitude, the 1SG recommended he be discharged under the TDP.   The applicant stated he could be a productive Soldier with a good attitude.  He had a bad attitude before, but he wanted to seek help if possible and stay in the Army if at all possible.

4.  On 10 March 1983, he accepted nonjudicial punishment (NJP) for failure to go at the time prescribed to his appointed place of duty on 5 March 1983.

5.  A DA Form 4856 shows he was counseled on 11 March 1983, by a captain (CPT) concerning discharge under the provisions of the TDP.  The CPT stated the applicant had not displayed the attitude or motivation necessary to become a good Soldier.  He had shown a flagrant disregard for rules, regulations, and authority.  The CPT indicated the applicant had stated he would change.  The CPT did not feel he had made the necessary commitment to become a good Soldier.  He advised the applicant he was recommending him for a discharge under the provisions of the TDP.  The applicant made no statement concerning this counseling session.
6.  On 16 March 1983, his commander notified him he was initiating action to release him from active duty for transfer to the Individual Ready Reserve (IRR) under the provisions of chapter 11 (Entry Level Status Performance and Conduct (TDP)) of Army Regulation 635-200 (Personnel Separations - Enlisted Separations).  His specific reasons for his proposed actions were the applicant had not displayed the attitude or motivation necessary to become a productive member in the U.S. Army.

7.  His commander advised him he had the right to:

* consult with military legal counsel or civilian counsel (at his own expense)
* submit statements in his own behalf
* request a separation medical examination
* obtain copies of the documents supporting his separation that would be sent to the separation authority
* waive his rights in writing

8.  He elected to submit a statement and waived his remaining rights.  In his statement he indicated he had a bad attitude the first couple of weeks but he worked on his attitude and did not have an attitude problem in the last 2 weeks.  He stated he had no problems with going to class and one of the instructors told him he was an outstanding student and would have no problem graduating from AIT.  He stated he wanted a chance to show everyone he could be a very good Soldier and cook with a good attitude.  He stated this was a big impact on his career and his life and that he turned down basketball offers to join the Army.  He stated he would like to stay in the Army with his class and, if not, be switched to a class 1 week behind his current class.

9.  His commander recommended he be separated from the service.  He requested a waiver of the recycle requirement because retaining him on active duty would create serious disciplinary problems or a hazard to the military mission or to the individual.  His commander noted the applicant had completed basic training and 2 weeks of AIT.

10.  On 21 March 1983, the appropriate authority approved the waiver of the recycle requirement and directed the applicant be separated from the service under the provisions of chapter 11 of Army Regulation 635-200.

11.  On 29 March 1983, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He completed 
3 months and 29 days of active service that was uncharacterized.

12.  On 30 November 1988, he was honorably discharged from the USAR.
13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  When a Soldier's conduct or performance became unacceptable, the commander ensured that a responsible official formally notified the Soldier of his or her deficiencies.  At least one formal counseling was required before separation proceedings could be initiated and there must have been evidence that the Soldier's deficiencies continued after the initial formal counseling.

	b.  Soldiers undergoing initial entry or other training were to be recycled (reassigned between training companies or, where this is not feasible, between training platoons) at least once.

	c.  Chapter 11 provided for the separation of personnel due to unsatisfactory performance, 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 that 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.  The regulation required uncharacterized service for separation under this chapter.

	d.  Entry level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service.

DISCUSSION AND CONCLUSIONS:

1.  He was formally counseled on four occasions concerning his deficiencies prior to the initiation of separation proceedings.  His deficiencies continued to occur after the initial formal counseling as evidenced by the continued formal counseling required and his acceptance of NJP on 10 March 1983.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  He had served less than 180 days of active service.  He was formally counseled concerning the TDP on three occasions.  The TDP under which he was processed for discharge specifically required that his service be uncharacterized.  There is no evidence during his formal counseling or during his processing for separation that he was told he would receive an honorable discharge.  

4.  In view of the above, there is no basis to change the characterization of his service.

5.  The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier had not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

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)                                         AR20120010301



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ABCMR Record of Proceedings (cont)                                         AR20120010301



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