IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130010058 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his characterization of service from uncharacterized to honorable or general under honorable conditions.

2.  The applicant states:

* he served more than 180 days on active duty and a discharge status needs to be placed on his DD Form 214
* he did not receive any courts-martial or disciplinary action during his time of service
* he desires an honorable or general discharge
* he completed all of his training without incident and with high marks
* he was at his permanent duty station when he was discharged
* Government policies state that service should be characterized after 
180 days of active service 
* he did not discover the error until he was applying for financial aid with a local college in his home town
* he is trying to use the Hazelwood Act in Texas for financial aid and he is unable to do so unless his service is characterized as honorable or general under honorable conditions
* he proudly served, did his best, and gained great personal skills and knowledge during the short time that he served


3.  The applicant provides a copy of his DD Form 214.

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 11 July 1991.  He completed training and was awarded military occupational specialty 91E (Dental Specialist).

3.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 6 January 1992, shows the applicant was recommended for discharge and psychiatrically cleared for any administrative action deemed appropriate by his command.

4.  On 8 January 1992, the applicant was notified of his immediate commander's intent to initiate separation action against him in accordance with Army Regulation 635-200 for entry level status performance and conduct.  The commander recommended the issuance of an uncharacterized discharge.  The applicant acknowledged notification of the commander's intent to recommend him for discharge.

5.  On 8 January 1992, the applicant consulted with counsel and was advised of the basis for the contemplated separation action for entry level status performance and conduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He also elected not to submit statements on his own behalf.

6.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level status performance and conduct and directed the issuance of an uncharacterized discharge.

7.  His DD Form 214 confirms he was discharged on 14 January 1992 by reason of entry level status performance and conduct in accordance with paragraph 11 of Army Regulation 635-200 with uncharacterized service.  This form further shows he completed 6 months and 4 days of creditable active service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Chapter 11 of this regulation, in effect at the time, governed the entry level status discharge.  It provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on the job or service school training, and must not have completed of more than 179 days of active duty on their current enlistment by the date of separation.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  The regulation required an uncharacterized description of service for separation under this chapter.

9.  Army Regulation 635-200, chapter 3, describes the different types of characterization of service.  It states 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 the purposes of characterization of service, the Soldier’s status is determined by the date of notification as to the initiation of separation proceedings (emphasis added).  Entry level status is defined as follows:

a. 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.

    b.  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 an RC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was in an entry level status at the time of his separation from active duty because he had served fewer than 180 days of active Federal service at the time of his notification for discharge.  The determination that the applicant's service was "uncharacterized" was in compliance with the Army regulation governing separation of Soldiers while in an entry level status.

2.  An uncharacterized discharge 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/her character of service to be rated as honorable or otherwise.

3.  There is no apparent error or injustice upon which to base recharacterization of his service to show he served honorably.

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)                                         AR20130010058



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ABCMR Record of Proceedings (cont)                                         AR20130010058



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