IN THE CASE OF:	  

		BOARD DATE:  11 July 2013

		DOCKET NUMBER:  AR20120022397 


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 change of the narrative reason for separation shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty) from "Entry level status performance and conduct" to something more favorable.

2.  The applicant states she served for 180 days and she should be considered a veteran.  The reason she left the military was because her first sergeant attacked her and tried to rape her.  Her records do not reflect this incident despite having reported the incident to the attorney general.  She would have continued her service otherwise.   She was discharged for misconduct instead.  This is incorrect.  She requested the discharge on her own because this was not the first time that she was attacked by an enlisted Soldier.  She knows she has an honorable discharge but she disagrees with the reason for her separation.

3.  The applicant provides:

* DD Form 214
* Enlistment contract and orders
* Enlistment and assignment orders
* DA Form 2-1 (Personnel Qualification Record)
* Leave and Earnings Statements

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 2 January 1987.  She completed basic training at Fort Jackson, SC, and she was subsequently reassigned to Fort Gordon, GA, for her advanced individual training.

3.  Her record contains an extensive history of negative counseling by her chain of command for various infractions including:

* multiple instances of missing bed check
* being late for fireguard
* poor maintenance of personal affairs
* failing to be at her appointed place of duty
* sleeping on fireguard
* missing physical training formation
* conduct unbecoming a Soldier 
* losing her military identification card, meal card, and medical card
* disobeying orders
* lack of military discipline, courtesy, and bearing

4.  On 24 June 1987, the applicant's immediate commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11 (Entry Level Status Performance and Conduct (Trainee Discharge Program)), by reason of lack of motivation and discipline necessary to be a productive Soldier.  She was further advised that if the request for separation was approved she would receive an entry level status character of service.

5.  On 24 June 1987, the applicant acknowledged receipt of the uncharacterized entry level separation notification action in accordance with Army Regulation 635-200, chapter 11.  She consulted with counsel and she was advised of her rights.  She declined a separation medical examination and elected not to submit a statement in her own behalf.

6.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against her in accordance with Army Regulation
635-200, chapter 11.  Her battalion commander recommended approval of the discharge action.

7.  On 19 August 1987, the separation authority approved the applicant's discharge from the Army in accordance with Army Regulation 635-200,
chapter 11, by reason of entry level performance and conduct with an uncharacterized character of service. 

8.  Accordingly, the applicant was discharged on 25 August 1987.  The DD Form 214 she was issued confirms she was discharged in accordance with Army Regulation 635-200, chapter 11, by reason of "Entry level status performance and conduct," with an entry level (uncharacterized) character of service.  This form also shows she completed 7 months and 24 days of creditable active military service.  Item 26 (Separation Code) of her DD Form 214 shows the entry "JGA."

9.  There is no indication she applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applied to individuals who had demonstrated they were not qualified for retention because they:

* could not adapt socially or emotionally to military life
* lacked the aptitude, ability, motivation, or self discipline for military service
* demonstrated characteristics not compatible with satisfactory continued service

	b.  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.  Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action).  An uncharacterized description of service was required for separation under this chapter.

	c.  Chapter 3 describes the different types of characterization of service.  It states in pertinent part 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 Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

	d.  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.

	e.  Paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code JGA, in effect at the time, was the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 11-3 (Entry Level Status).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows, while in training, the applicant appears to have lacked motivation and self-discipline and showed an inability to adjust to the military environment.  Accordingly, her immediate commander initiated action on 24 June 1987 to recommend her for 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, her separation accurately reflects her overall record of service.

2.  There is no evidence of record and she provides none to corroborate the sexual assault she contends.  Likewise, there is no evidence of record and she provides none to support her contention that she was the one who requested the discharge.

3.  The available evidence shows she lacked the necessary motivation, discipline, ability, or aptitude to become a productive Soldier or failed to respond to formal counseling.  Her chain of command initiated separation action while she was in an entry level status.

4.  During the first 180 days of continuous active military service a member's service is under review.  When separated 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.

5.  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 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. 

6.  Her narrative reason for separation was assigned based on the fact that she was separated under the provisions of Army Regulation 635-200,
paragraph 11-3a by reason of entry level status performance and conduct.  Absent her poor performance and conduct during training, there was no fundamental reason to process her for separation.  The appropriate separation code associated with this type of discharge is "JGA."  Therefore, she correctly received the appropriate narrative reason for separation and separation code associated with her discharge.

7.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120022397



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ABCMR Record of Proceedings (cont)                                         AR20120022397



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