IN THE CASE OF:	   

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130006154 


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:

* an upgrade of his uncharacterized discharge from the U.S. Army Reserve (USAR) to an honorable discharge
* the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) 

2.  The applicant states he enlisted and served his time at the field unit.  He was participating in drills for Operation Desert Shield.  When he requested more information, his recruiting office said his recruiter had been released for going against Army policy.  He was dealing with a relative's suicide and he was emotionally compromised at the time this happened.  He was also a part of a unit that was gearing up for Operation Desert Shield.  He worked every month preparing equipment.  He held the rank of private first class at the time.  When he served his time, the clinical civilian school he was attending had a 2-year waiting period.  He still maintained his duties at the Reserve unit and he completed basic combat training. 

3.  The applicant provides:

* Orders 040-049 (discharge), dated 25 November 1992
* U.S. Army Reserve Personnel Center (DARP) Form 249-2-E (Chronological Statement of Retirement Points), dated 13 April 1992


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 USAR for 8 years on 30 November 1989.  He enlisted for training in the Specialized Training for Army Reserve (STAR) Readiness Program in military occupational specialty (MOS) 91V (Respiratory Specialist).  He was assigned to the 323rd General Hospital, Southfield, MI.

3.  On 30 November 1989, the Cleveland, OH, Military Entrance Processing Station (MEPS) published Orders 237-013 ordering him to initial active duty for training (IADT).  He was ordered to report to Fort Knox, KY, on 28 December 1989 to attend 9 weeks of training. 

4.  He entered active duty on 28 December 1989.  He completed basic combat training and he was released from active duty on 1 March 1990.  He was issued a DD Form 220 (Active Duty Report) that captured his active service from 28 December 1989 to 1 March 1990. 

5.  On 4 August 1992, by memorandum, the Commander, 323rd General Hospital stated the applicant was being terminated from the STAR program due to his poor attendance. 

6.  On 14 October 1992, by memorandum to the applicant, the Commander, 323rd General Hospital notified him that he had failed to cooperate in obtaining a new MEPS physical in order to ship to advanced individual training (AIT).  A physical was necessary to assure he was physically qualified to ship.  Without a physical, he could not ship and if he could not ship, he would not be able to become MOS qualified (MOSQ).


7.  On 14 October 1992, by certified mail, the Commander, 323rd General Hospital notified the applicant that he was initiating action to separate him from the USAR.  The specific reason is listed as the applicant's failure to obtain a MEPS physical.  A new training reservation could not be made without one.  He could not attend IADT and could not become MOSQ.  He was advised of his rights.  

8.  The certified mail receipt shows someone signed for the certified letter on 6 November 1992. 

9.  On 9 November 1992, the Commander, 323rd General Hospital submitted a DA Form 4651-R (Request for Reserve Component Assignment or Attachment). He requested the applicant be discharged in accordance with Army Regulation 135-178 (Army National Guard and U.S. Army Reserve - Administrative Separations), paragraph 5-1, with an entry level discharge. 

10.  On 13 November 1992, Headquarters, USAR Command, Fort McPherson, GA, approved an exception to policy for the applicant to attend training for another MOS.  The approving official stated that the exception is approved provided the applicant is physically and otherwise qualified.  The applicant had been terminated from the STAR program and is required to attend training for another MOS.  

11.  There is no indication the applicant underwent a physical or became qualified to attend training. 

12.  On 17 November 1992, the Military Personnel Officer, Headquarters, USAR Command, Fort Benjamin Harrison recommended the applicant be discharged due to failure to ship for IADT.  The applicant had been notified by his unit but refused to be scheduled for AIT, was disenrolled from STAR program, and failed to respond to official correspondence. 

13.  On 25 November 1992, Headquarters, USAR Command, Fort McPherson, GA, published Orders 040-049, ordering his discharge from the USAR effective 25 November 1992 with an uncharacterized discharge. 

14.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States and USAR enlisted Soldiers for a variety of reasons.  

	a.  Paragraph 5-1 of the regulation in effect at the time provided for separation of a Soldier who failed to become MOSQ. 
	b.  Entry Level Status: Service will be described as uncharacterized if separation processing is initiated while a Soldier is in an entry level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case; or the Secretary of the Army, or the Secretary’s designated representative, 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 military duty.

	c.  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.  A member of a Reserve Component (RC) who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry level status upon enlistment in a reserve component.  Entry level status for such a member of a reserve component terminates as follows: (1) 180 days after beginning training if the Soldier is ordered to ADT for one continuous period of 180 days or more. (2) 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into two or more separate periods of active 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.

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty (emphasis added).  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  A DD Form 214 will be prepared for each Soldier including:

	a.  Active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration of term of service), physical disability separation, or punitive discharge under the Uniform Code of Military Justice;

	b.  RC Soldiers completing 90 days or more of continuous ADT, Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service.  Also, RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty;
	c.  RC Soldiers completing initial ADT that results in the award of an MOS even when the active duty period was less than 90 days.  This includes completion of advanced individual training under the ARNG of the United States Alternate Training Program or USAR Split Training Program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR on 30 November 1989 for training in MOS 91V.  He completed basic combat training but failed to obtain a MEPS physical that would have allowed him to train for the MOS he enlisted for.  As such, he was never MOSQ.  Accordingly, his chain of command initiated separation action against him.  He was notified but failed to respond. 

2.  Since he was still in IADT status, his service was under review.  When separated while still in training, 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.

3.  The entry-level separation (uncharacterized) is given regardless of the reason for separation.  This uncharacterized character of service is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.  The applicant received the appropriate character of service.  Therefore, there is no basis for granting the applicant's requested relief.

4.  He does not qualify for the issuance of a DD Form 214 since he did not perform active duty of 90 consecutive days of more.  The only active duty he performed was attending basic combat training from 28 December 1989 to 1 March 1990.  Since this period was less than 90 consecutive days, he was issued a DD Form 220 that captured his active service.  He did not perform any other active service of 90 consecutive days or more.  Therefore, he does not qualify for the issuance of a DD Form 214. 








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)                                         AR20130006154





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ABCMR Record of Proceedings (cont)                                         AR20130006154



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