IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120017608 


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 characterization of service be changed from "uncharacterized" to "honorable." 

2.  The applicant states his captain told him he would receive an honorable discharge and would be issued an Honorable Discharge Certificate.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Reserve (USAR) Honorable Discharge Certificate
* Letter of appreciation
* Certificate of recognition
* Certificate of birth
* Social security card
* State driver license

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's records show he enlisted in the Regular Army on 10 October 1989.  He was assigned to Company A, 232nd Medical Battalion, Fort Sam Houston, TX, for training.  

3.  On 23 February 1990, the class advisor and the course director recommended his relief from the 91A (Medical Specialist) course after he failed three initial examinations. 

4.  On 12 March 1990, he departed his training unit in an absent without leave (AWOL) status.  However, he returned to military control on 28 March 1990. 

5.  On 4 April 1990, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from 12 to     28 March 1990. 

6.  On 20 April 1990, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11 (Entry Level Status), by reason of lack of adaptability necessary to become a productive member of the military and his strong desire to be discharged.  He was further advised that if the request for separation was approved he would receive an entry level status character of service.

7.  On 20 April 1990, the applicant acknowledged receipt of the separation notification action in accordance with Army Regulation 635-200, chapter 11.  He waived his right to consulting counsel and he elected not to submit a statement in his own behalf.  He acknowledged that he may encounter substantial prejudice in civilian life if his discharge was approved. 

8.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation
635-200, chapter 11.  He recommended an entry level separation.

9.  On 23 April 1990, the separation authority approved the applicant's separation from the Army in accordance with Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct with an uncharacterized description of service.  He further ordered him transferred to the USAR (Individual Ready Reserve (IRR)).  
10.  Accordingly, on 2 May 1990, the applicant was released from active duty and transferred to the USAR Control Group (Annual Training).  The DD Form 214 he was issued at the time confirms he was released from active duty in accordance with Army Regulation 635-200, chapter 11, with an uncharacterized character of service.  This form also shows he completed 6 months and 7 days of creditable active service and he had lost time from 12 to 28 March 1990. 

11.  There is no indication he applied to the Army Discharge Review Board for a change of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Chapter 11 of this regulation, in effect at the time, governed the entry level status discharge.  It provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on the job or service school training, and must not have completed of more than 179 days of active duty on their current enlistment by the date of separation.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  The regulation required an uncharacterized description of service for separation under this chapter.

13.  Army Regulation 635-200, chapter 3, describes the different types of characterization of service.  It states that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For the purposes of characterization of service, the Soldier’s status is determined by the date of notification as to the initiation of separation proceedings.  Upon enlistment, a Soldier qualifies for entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active service after a service break of more than 92 days of active service.


14.  Army Regulation 635-200, paragraph 3-7a, provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that while in training the applicant appears to have lacked motivation and self-discipline and showed an inability to adjust to the military environment.  Accordingly, his immediate commander recommended his separation under the provisions of Army Regulation 635-200, chapter 11.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his separation accurately reflects his overall record of service.

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separation action is started within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by The Secretary of the Army.  A general characterization of service is not authorized.

3.  The entry-level separation is given regardless of the reason for separation.  An uncharacterized discharge is neither positive nor negative; it is not "derogatory."  An uncharacterized character of service is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his/her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request to change his character of service to an honorable discharge.

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)                                         AR20120017608





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ABCMR Record of Proceedings (cont)                                         AR20120017608



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