BOARD DATE: 13 June 2013
DOCKET NUMBER: AR20120021635
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 upgrade of his uncharacterized discharge to an honorable or a general discharge.
2. The applicant states he was discharged after basic training on suspicion of being gay. He was told that after 1 year he could request a general discharge; however, he has been incarcerated and he has just now found the form to make his request.
3. The applicant provides no additional documents with 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. The applicant enlisted in the Regular Army on 3 June 1988 for a period of
4 years, training as a man-portable air-defense systems (MANPADS) crewman, Airborne training, and a cash enlistment bonus. He was transferred to Fort Bliss, TX to undergo his one-station unit training.
3. On 1 August 1988, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military justice (UCMJ), for committing an indecent assault on another Soldier.
4. On 18 August 1988, the applicants commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 11, for failing to adapt to the military environment. He further stated that despite being given maximum guidance and counseling, they had met with failure, his behavior continued to fall short of Army standards, he did not have the required amount of self-discipline necessary to become a productive Soldier, and he had demonstrated irresponsible traits in both his duties and personal conduct.
5. The applicant waived his right to counsel and elected not to submit a statement in his own behalf.
6. On 24 August 1988, the separation authority approved the recommendation for discharge and directed his service be uncharacterized.
7. Accordingly, on 26 August 1988, he was discharged under the provisions of Army Regulation 635-200, paragraph 11-3a, due to entry level status performance and conduct. He completed 2 months and 24 days of creditable active service with service uncharacterized.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation provides for the separation of personnel for unsatisfactory performance or conduct (or both) while in an entry level status (less than 180 days of active service). This policy applied to individuals who demonstrated they were not qualified for retention because they could not meet the minimum standards prescribed for successful completion of training and they lacked the aptitude, ability, motivation or self-discipline for military service, or they demonstrated characteristics not compatible with satisfactory continued service. Personnel separated under this provision would be separated under entry level status with their service uncharacterized.
DISCUSSION AND CONCLUSIONS:
1. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2. Accordingly, it appears the type of discharge directed and the reasons therefore were appropriate given the circumstances in the case.
3. The applicant's contentions that he was led to believe that he could have his discharge changed to an honorable or general discharge has been noted and appears to be without merit. An uncharacterized separation is not meant to be a negative reflection of a Soldiers military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.
4. In view of the foregoing, there is no basis for granting the applicant's 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) AR20120021635
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ABCMR Record of Proceedings (cont) AR20120021635
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