IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130010824 


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, in effect, correction of his records to show he received an honorable or a general discharge instead of an uncharacterized discharge.  

2.  The applicant states his discharge is uncharacterized.  He was told he could get it upgraded to a general or an honorable discharge at a later date.  He believed this was an automatic process.  

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army for a period of 3 years on 6 August 1996.  He was subsequently assigned to Fort Knox, KY, for completion of training. 

3.  While in training, on 26 August 1996, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for dereliction of duties (willfully failed to continue running during physical training).  

4.  Also while in training, the applicant was frequently counseled by members of his chain of command for various infractions including:

* not meeting physical fitness standards
* disobeying a commissioned officer
* exceeding weight standards
* displaying a poor attitude, lack of motivation, and being disruptive to training
* failing to follow instructions (failing to shave)

5.  On 18 October 1996, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of entry level performance and conduct.  He stated that the applicant's performance and conduct showed he could not or would not adapt socially or emotionally to military service and he had demonstrated behavior characteristics not compatible with satisfactory continued service.  The immediate commander recommended an entry level separation.

6.  On 21 October 1996, the applicant acknowledged receipt of the separation notification in accordance with chapter 11 of Army Regulation 635-200.  He acknowledged that he understood if the request for discharge was approved, he would receive an entry level separation with uncharacterized service.  He further acknowledged that he had received adequate counseling and rehabilitative measures concerning his inability to become a productive member of the armed forces.

7.  Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him in accordance with chapter 11 of Army Regulation 635-200 by reason of lack of attitude and motivation to successfully complete the Soldierization process and meet graduation requirements associated with his training.   

8.  On 23 October 1996, the separation authority waived the rehabilitation requirements and approved the applicant's discharge from the Army under the provisions of chapter 11, Army Regulation 635-200.  Accordingly, the applicant was discharged on 28 October 1996. 

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged due to entry level status performance and conduct in accordance with chapter 11 of Army Regulation 635-200 with an uncharacterized character of service.  He completed 2 months and 23 days (83 days) of creditable active military service.

10.  On 27 July 2001, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  Accordingly, the ADRB denied his petition for a change in the characterization and/or reason of his discharge. 

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

	a.  Chapter 3 describes the different types of characterization of service.  It states 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 an entry-level status, except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

	b.  Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It states when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons: Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates the applicant could not or would not adapt to the military life.  He lacked the attitude or motivation to successfully complete training and become a productive Soldier.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his military service at that time.

2.  By regulation, a separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

3.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, 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 it is approved by the Secretary of the Army.

4.  An uncharacterized discharge is neither positive nor negative; it is not "derogatory."  An uncharacterized character of service 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.

5.  The Army has never had a policy wherein a characterization of service is automatically changed or is changed to passage of time.  The applicant received the appropriate characterization of service and he provides no evidence that shows it was in error or unjust.  Therefore, he 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 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)                                         AR20130010824





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ABCMR Record of Proceedings (cont)                                         AR20130010824



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