IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130004346 


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 his "uncharacterized" character of service.

2.  The applicant states he would like it to say "honorable."

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 18 September 1990, he enlisted in the Regular Army.  He completed basic training; however, he did not complete advanced individual training and he was not awarded a military occupational specialty.

3.  He accepted nonjudicial punishment (NJP) on:

* 8 January 1991 for failing to obey a lawful order from a noncommissioned officer (NCO) 8 January 1991
* 21 February 1991 for failing to obey a lawful order from an NCO on
10 February 1991

4.  He received formal counseling on:

* 15 January 1991 by his unit commander for his inability to function within the guidelines of standard rules and regulations; he was advised further misconduct could result in separation from the service
* 16 January 1991 for being absent from the company area from 1810 to 2023 hours
* 14 February 1991 by his first sergeant for his total disregard for any policies or procedures established within the unit
* 28 February 1991 by his unit commander for his blatant disregard for battery, battalion, and Army policies; he was further advised that further misconduct could result in separation from the service

5.  On 4 March 1991, his commander notified him he was initiating action to effect his elimination from the Army prior to the expiration of his current term of service under the provisions of Army Regulation 635-200, chapter 11 due to his inability to adapt to a military environment.  The specific reasons for his proposed actions were the applicant had been repeatedly counseled due to his attitude and adjustment problems.  He had demonstrated a completed lack of motivation and self-discipline which could not be tolerated.

6.  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
* obtain copies of the documents supporting his separation that would be sent to the separation authority
* waive his rights in writing

7.  The applicant waived his rights and did not submit a statement in his own behalf.  He understood he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge.

8.  His commander recommended he be separated prior to the expiration of his term of service for unsatisfactory performance under the provisions of chapter 11 of Army Regulation 635-200 in that he had failed to adapt to the military environment.  The commander requested waiver of a rehabilitative transfer.

9.  On 19 March 1991, the appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, and waived a rehabilitative transfer.  He directed the applicant be discharged from the military in an entry level status with performance and conduct as uncharacterized.

10.  On 21 March 1991, he was discharged under the provisions of Army Regulation 635-200, chapter 11 by reason of entry level status.  He completed 6 months and 21 days of creditable active service this period.  His DD Form 214 shows in:

* item 24 (Character of Service) – Uncharacterized
* item 26 (Separation Code) – JGA
* item 28 (Narrative Reason for Separation) – Entry Level Status

11.  Army Regulation 635-200, chapter 11, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status.

	a.  Separation was warranted when unsatisfactory performance or minor disciplinary infractions was evidenced by:

* inability
* lack of reasonable effort
* failure to adapt to the military environment

	b.  The policy applied to Soldiers who:

* were in an entry level status and, before the date of the initiation of separation action, had completed no more than 180 days of continuous active duty
* could not or would not adapt socially or emotionally to military life
* had demonstrated character and behavior characteristics not compatible with satisfactory continued service
* had failed to respond to counseling

	c.  Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service.

	d.  The regulation required an uncharacterized description of service for separation under this chapter.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, by reason of "entry level performance and conduct." 

DISCUSSION AND CONCLUSIONS:

1.  He was formally counseled on four occasions concerning his deficiencies prior to the initiation of separation proceedings.  During two of these formal counseling sessions he was advised that continued misconduct could be cause for his discharge prior to the expiration of his term of service.  He also accepted NJP on two occasions.  Therefore, his misconduct clearly shows his lack of putting forth a reasonable effort to adapt to a military environment.

2.  At the time his commander notified him he was initiating action to eliminate him from the service, he had completed 5 months and 17 days of continuous active service.  Therefore, he was still in an entry level status at the time separation action was initiated.  Army Regulation 635-200, chapter 11 under which he was processed specifically required that his service be uncharacterized.

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

4.  In view of the foregoing, 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 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)                                         AR20130004346



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ABCMR Record of Proceedings (cont)                                         AR20130004346



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