IN THE CASE OF:	  

		BOARD DATE:	    30 January 2014

		DOCKET NUMBER:  AR20130008485 


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 properly and equitably discharged.

2.  The applicant states he completed basic combat training (BCT) and advanced individual training (AIT), and he was advanced to private (PV2)/E-2.  However, he was unfairly separated and transferred to the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR).

	a.  After returning from a doctor's appointment, he stopped to talk to his squad leader in the mess hall to find out what he had missed in the morning class.  A fellow Soldier, who was angry, started yelling at him.  He told the Soldier he was talking to his squad leader and continued his conversation.

	b.  The Soldier, who was standing behind him, struck him in the head with his fist.  The applicant states he turned to defend himself, he got into trouble because of the incident, and it led to his separation from the Army.  However, the other Soldier was allowed to remain in the Army.

	c.  He adds he had two counseling statements in 12 days, which was not sufficient to warrant being separated from the Army.

3.  The applicant provides a copy of a statement from his military defense counsel, dated 1 September 1989; DD Form 214 (Certificate of Release or 


Discharge from Active Duty); USAR advancement to PV2 memorandum; and a letter from a former platoon sergeant, dated 28 January 2013.

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 USAR on 19 April 1989 for a period of 8 years.  On 8 May 1989, he was discharged from the USAR for the purpose of enlisting in the Regular Army (RA).  On 9 May 1989, he enlisted in the RA for a period of
4 years as a private (PV1)/E-1.

3.  He attended BCT while assigned to Company A, 2nd Battalion, 13th Infantry, 1st Basic Training Brigade, Fort Jackson, SC, from 13 May to 6 July 1989.  He completed AIT and he was awarded military occupational specialty 55B (Ammunition Specialist) while assigned to Company A, 832nd Ordnance Battalion, 269th Ordnance Brigade, U.S. Army Missile Command, Redstone Arsenal, AL, from 10 July through 14 September 1989.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for assaulting a Soldier by striking him in the face with a fist on 9 August 1989.  The applicant did not appeal the NJP.

5.  Two DA Forms 4856-R (General Counseling Forms) show the applicant was counseled by noncommissioned officers (NCOs) on:

* 28 August 1989, for missing formation on 22 August 1989
* 30 August 1989, for being disrespectful to an NCO by becoming argumentative and belligerent (two occasions; on 27 and 28 August 1989)


6.  On 31 August 1989, 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 conduct and performance as demonstrated by his continued disrespect towards NCOs.  He informed the applicant he was recommending him for an entry level - uncharacterized discharge.

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

	c.  The separation action lists as enclosures the NJP and DA Forms 4856-R.

7.  On 1 September 1989, Captain (CPT) Donald W. N----, Senior Defense Counsel, informed the applicant's commander the applicant sought his advice and assistance concerning the recommended separation action.  CPT N---- opined that the elimination action was not legally sufficient because evidence was not presented of behavioral deficiencies since the applicant's NJP on
17 August 1989.  In addition, despite the two counseling statements, he concluded the applicant was being unfairly treated by NCOs in his unit.

8.  On 7 September 1989, the applicant consulted with legal counsel and he was advised of the reason for separation, its effects, and the rights available to him.

	a.  He was advised he would not be permitted to apply for enlistment in the U.S. Army within 2 years of his separation.

	b.  He elected to submit a statement in his own behalf; however, a copy of any such statement is not filed in his military personnel records.

   c.  He requested representation by CPT Donald W. N---- as military counsel.

	d.  The applicant and counsel placed their signatures on the document.

9.  On 7 September 1989, the company commander recommended the applicant's separation from the Army based on his entry-level status performance and conduct.  The commander noted he did not consider it feasible or appropriate to accomplish other disposition because of the Soldier's failure to adapt to the military environment.  He opined that any further attempts to rehabilitate the applicant would not produce the quality Soldier desired by the Army.
10.  On 11 September 1989, the separation authority approved the commander's recommendation for separation and directed an entry-level status separation of "uncharacterized" and transfer to the IRR.  He also approved the company commander's request for waiver of the rehabilitation requirements.

11.  The applicant's DD Form 214 shows he entered active duty on 9 May 1989; he was released from active duty on 15 September 1989 under the provisions of Army Regulation 635-200, chapter 11, based on entry-level status; and he was transferred to the USAR Control Group (Annual Training) to complete his remaining Reserve obligation.

	a.  He completed 4 months and 7 days of creditable active service.

	b.  It also shows in:

* item 24 (Character of Service):  "Uncharacterized"
* item 26 (Separation Code):  "LGA" (Entry Level Performance and Conduct)
* item 27 (Reenlistment Code):  "RE-3" (Eligible for Reenlistment with Waiver)

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  In support of his application the applicant provides:

	a.  a memorandum issued by the USAR Personnel Center, St. Louis, MO, dated 21 May 1990, that shows he was advanced to PV2/E-2 with a date of rank of 9 May 1989.

	b.  a statement from Master Sergeant (MSG) Gidell P-----, U.S. Army (Retired), dated 28 January 2013, who states he was assigned as platoon sergeant of the 3rd Platoon, Company A, 2nd Battalion, 13th Infantry, from January 1989 to February 1991.  In April 1989, he was made aware a Soldier from his hometown (the applicant) had been assigned to the 1st Platoon.
MSG P----- later learned that the applicant was missing from training.  He spoke with the applicant's platoon sergeant and was told the applicant was on sick call for migraine headaches.

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

	a.  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."

	b.  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.

	c.  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.

	d.  Paragraph 3-9 provides that separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.

15.  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 
properly and equitably discharged.

2.  Records show the applicant entered active duty in the RA on 9 May 1989.

	a.  On 31 August 1989, the applicant's company commander initiated separation action based on the applicant's unsatisfactory, entry-level status performance and conduct. 

	b.  The separation authority approved the separation action and the applicant was released from active duty on 15 September 1989.  At the time he had completed 4 months and 7 days (i.e., 127 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 separated from active duty for transfer to the USAR IRR.

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 status 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 there was insufficient justification for him to be separated from the Army was considered.

	a.  During a period of less than 4 months, the applicant received NJP for assaulting a Soldier, he was counseled for missing formation, and he was also counseled for being disrespectful to NCOs by being becoming argumentative and belligerent on two occasions.

	b.  The evidence of record shows the company commander considered the applicant's defense counsel's opinion regarding the elimination action being not legally sufficient because of the lack of evidence subsequent to the applicant receiving NJP and that he was being unfairly treated by NCOs.  However, the evidence of record shows the applicant committed acts of indiscipline after receiving the NJP, he received counseling by NCOs, and his misconduct was documented by counseling statements.  In addition, there is no evidence of record that shows the applicant was treated unfairly.

	c.  Moreover, the separation authority determined that further attempts to rehabilitate the applicant would not produce the quality Soldier desired.  Thus, he waived the requirement for rehabilitative transfer to another active duty unit. However, the separation authority did approve the applicant's transfer to the USAR IRR where the applicant was subsequently advanced to PV2/E-2, that indicates this was the proper disposition for the applicant.

	d.  The statement of the former platoon sergeant (from the applicant's BCT unit) was also considered.  However, his statement, made more than 23 years later, offers insufficient evidence to support the applicant's contention.  More importantly, it is noted that the applicant's incidents of indiscipline for which he was separated did not occur while assigned to the BCT unit, but instead while he was assigned to his AIT unit.
6.  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)                                         AR20130008485



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ABCMR Record of Proceedings (cont)                                         AR20130008485



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