IN THE CASE OF:	  

		BOARD DATE:	15 August 2013

		DOCKET NUMBER:  AR20130000214 


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 correction of his records to show he was honorably discharged.

2.  The applicant states he was tricked and forced into signing his discharge.

	a.  He passed every test and did nothing wrong while he was in the Army.

	b.  He was verbally, mentally, and physically abused by his drill sergeants, first sergeant, executive officer, and company commander.

	c.  He is fluent in four languages, has a Bachelor of Arts degree, and he possesses computer skills.  However, the uncharacterized discharge is preventing him from getting a good job and leading a normal life.

3.  The applicant provides no additional evidence.

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 U.S. Army Reserve on 20 July 1993 for a period of 8 years.  He further enlisted in the Regular Army (RA) on 1 October 1993 for a period of 3 years.

3.  Thirteen DA Forms 4856 (General Counseling Forms) with dates ranging from 6 October 1993 to 13 January 1994 show the applicant was counseled on numerous occasions by noncommissioned officers on the following:

* Army policies and procedures
* Soldier skills
* failing to –

* follow instructions
* report for duty
* maintain personal hygiene
* meet standards for basic training/field artillery end-of-cycle tests

* lack of responsibility and initiative
* disrespect to a noncommissioned officer
* possible separation action

4.  On 27 January 1994, the applicant's company commander initiated action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (Entry Level Performance and Conduct).

	a.  The reasons for his proposed action were the applicant's failure to adapt emotionally and his failure to meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, and self-discipline.

	b.  The applicant was advised of his rights and the separation procedures involved.

5.  The applicant consulted with legal counsel and was advised of the reason for separation and the rights available to him.

	a.  He was advised that, if approved, he would receive an entry-level separation with uncharacterized service and he would not be permitted to apply for enlistment in the U.S. Army within 2 years of his separation.

	b.  He declined a separation medical examination.

	c.  He elected to submit a statement in his own behalf.  In his statement, dated 27 January 1994, the applicant professed his love for the Army and country.  He indicated that he believed he had matured during the last couple of weeks and asked for the chance to prove himself to his drill sergeants and chain of command.  There is no indication in the statement he made on 27 January 1994 of allegations that he was verbally, mentally, or physically abused by the drill sergeants, first sergeant, executive officer, or company commander.

6.  On 27 January 1994, the applicant's company commander recommended approval of the applicant's separation action based on his entry-level status performance and conduct.

7.  On 9 February 1994, the separation authority approved the commander's recommendation for discharge of the applicant and directed an entry-level status separation of "uncharacterized."

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 1 October 1993 and he was discharged on 11 February 1994 under the provisions of Army Regulation 635-200, chapter 11, based on entry-level performance and conduct.

	a.  He completed 4 months and 11 days of active service during this period.

	b.  It also shows his service as "uncharacterized" with a separation code of "JGA" (Entry Level Performance and Conduct) and a reentry code of "RE-3" (Eligible for Reenlistment with Waiver).

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

	a.  Chapter 3 (Character of Service/Description of Service) provides in:

		(1)  paragraph 3-7a 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.  Only the honorable characterization may be awarded to a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted; and

		(2)  paragraph 3-9 that separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.

	b.  Chapter 11 provides policy and guidance for separation of personnel because of unsatisfactory performance or conduct while in an entry-level status.  Personnel who enlisted in the RA are considered to be in an entry-level status if, before the date of the initiation of separation action, they have completed no more than 180 days of continuous active duty.  Service of personnel separated under the provisions of this chapter will be described as "uncharacterized."

10.  Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be corrected to show he was honorably discharged.

2.  Records show the applicant entered active duty in the RA on 1 October 1993.

	a.  On 27 January 1994, the applicant's company commander initiated separation action based on the applicant's unsatisfactory performance and conduct.

	b.  The separation authority approved the separation action and the applicant was discharged on 11 February 1994.  At the time he had completed 4 months and 11 days (i.e., 131 days) of active duty service.

	c.  Therefore, the evidence of record shows the applicant was in an entry-level status on the date of initiation of the separation action and when he was discharged.

3.  The regulatory guidance shows that the service of an individual separated in an entry-level status will be "uncharacterized."

4.  Records show the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, based on entry-level performance and conduct was administratively correct and in compliance with applicable regulations in effect at the time.  In addition, the character of service entered in item 24 of his DD Form 214 was proper and correct.

5.  The applicant's contention that he was verbally, mentally, and physically abused by his drill sergeants, first sergeant, executive officer, and company commander was considered.  However, his statement alone, made more than 18 years later, offers insufficient evidence to support such a claim.  Moreover, it is noted that the statement he made at the time of his separation processing is silent on any such allegations.

6.  In view of the foregoing, the applicant is not entitled to 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 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)                                         AR20130000214



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ABCMR Record of Proceedings (cont)                                         AR20130000214



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