IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130019728 


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 military service records to show his correct date of birth (DOB) and that he was honorably discharged.

2.  The applicant states his DOB is 14 July XXXX, not 14 June XXXX.  He also states that he served on active duty for seven months and he should have received an honorable discharge.  He adds that his employment opportunities are impaired by the uncharacterized period of service.

3.  The applicant provides a copy of his Certificate of Birth and DD Form 214 (Certificate of Release of 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.  The applicant's DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted in the U.S. Army Reserve delayed entry program on 26 January 1998.  He further enlisted in the Regular Army (RA) on 24 March 1998 for a period of 3 years.  Item 6 (DOB) shows the entry "XX0714" (i.e., 14 July XXXX).

3.  Three DA Forms 4856 (General Counseling Forms) with dates ranging from 11 August 1998 to 17 September 1998 show the applicant was counseled:

* on the expectations of a Soldier
* for not wanting to be in the Army
* his poor performance of duties as an infantryman

4.  On 14 September 1998, 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 unsatisfactory performance and failure to adapt to the military environment.

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

   c.  He was also advised that, because he was in entry level status, the period of his service would be uncharacterized.

5.  The applicant consulted with legal counsel and was advised of the reasons for separation and the rights available to him.

   a.  He was advised, if approved, he would receive an entry level separation and he would not be permitted to apply for enlistment in the U.S. Army within 2 years of his separation.

   b.  He elected not to submit statements in his own behalf.

   c.  The applicant and his counsel placed their signatures on the document.

6.  On 14 September 1998, the applicant's company commander recommended approval of the applicant's separation action based on his entry level status performance and conduct.

7.  On 22 September 1998, the separation authority approved the commander's recommendation for discharge of the applicant and directed an entry level status separation of "uncharacterized."

8.  The applicant's DD Form 214 shows he entered active duty on 24 March 1998 and he was discharged on 4 November 1998 under the provisions of Army Regulation 635-200, chapter 11, based on entry level performance and conduct. He completed 7 months and 11 days of active service during this period.  It also shows in:

   a.  item 5 (DOB), the entry "XXXX0614" (i.e., 14 June XXXX), and

   b.  item 24 (Character of Service):  "Uncharacterized."

9.  In support of his request the applicant provides a copy of a State of Georgia, Certificate of Live Birth, filed on 13 August XXXX, that shows he was born on 
14 July XXXX.

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

	a.  Chapter 3 (Character of Service/Description of Service) provides in:

		(1)  paragraph 3-7a 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.  Only the honorable characterization may be awarded to a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted; and

		(2)  paragraph 3-9 that separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry level status.

	b.  Chapter 11 provides policy and guidance for the 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."

11.  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 evidence of record shows the applicant's DOB is 14 July XXXX and that his DOB is correctly recorded on his DD Form 4 and in his military service records.  It appears the applicant's DOB was incorrectly recorded on his 
DD Form 214 due to an administrative error.  Therefore, it would be appropriate at this time to correct his DD Form 214 to show his correct DOB.

2.  Records show the applicant entered active duty in the RA on 24 March 1998.

	a.  The regulatory guidance shows that 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.  The service of personnel separated under the provisions of Army Regulation 635-200, chapter 11, will be described as "uncharacterized."

   b.  On 14 September 1998, the applicant's company commander initiated separation action based on the applicant's unsatisfactory performance and failure to adapt to the military environment.   At that time, the applicant had completed 5 months and 21 days (i.e., 171 days) of active duty service.

   c.  The separation authority approved the separation action and directed an entry level status separation of "uncharacterized."  Accordingly, the applicant was discharged on 4 November 1998.

3.  The evidence of record shows the applicant was in an entry level status on the date of initiation of the separation action.  The governing Army regulation provides that the service will be described as "uncharacterized."  Therefore, the evidence of record does not support the applicant's contention that the character of service for the period under review should be corrected.

4.  Records show the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, based on entry level performance and conduct 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.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

6.  Therefore, in view of the foregoing, there is no basis for correcting the character of service for the period of service under review.  However, it would be appropriate to correct the applicant's DD Form 214 to show his correct DOB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 5 of his DD Form 214 the current entry and replacing it with the entry as shown on his Certificate of Live Birth Registration.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to character of service.



      _______ _   __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)                                         AR20130019728



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ABCMR Record of Proceedings (cont)                                         AR20130019728



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