BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000300 


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 item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his characterization of service as "honorable" rather than "uncharacterized."

2.  He states, in effect, that his character of service should be honorable because his tattoos were not visible while in uniform (to include his Army Physical Training Uniform) and he did not perform any actions that displayed any lack of respect or discipline.  He implies that his discharge was a form of male sexual discrimination by his female company commander who would not let him cover up his tattoos the right way because she wanted them blacked out with ink.  He requested tattoo removal, but the commander was asking him to use his enlistment bonus money.  He requested to remain in the service, but was denied due to his tattoos.  He was told he would receive an honorable, entry level separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and that is what he wants.  He was the best quality of Soldier and the reason for his separation was his failure to remove his tattoos not because of an inability to adapt to military standards or due to a lack of respect or discipline.  He was told his discharge was changed to honorable and the letters "OH" were printed on a certified true copy of his DD Form 214.

3.  He provides:

* two DD Forms 214
* three DA Forms 4856 (General Counseling Form)

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 provides a DD Form 214 which shows he enlisted in the U.S. Navy on 5 April 1993.  This DD Form 214 contains the following pertinent information:

* item 12b (Separation Date This Period) shows he was separated on 18 May 1993
* item 23 (Type of Separation) shows he was discharged
* item 24 shows his service as "ENTRY LEVEL SEPARATION (UNCHARACTERIZED)"
* item 28 (Narrative Reason for Separation) shows his reason for separation as "ERRONEOUS ENLISTMENT - ENLISTED, REENLISTED, EXTENDED OR INDUCTED IN ERROR"

3.  The applicant's records show he enlisted in the Regular Army on 10 September 1997 and was assigned to Fort Benning, GA, for training.

4.  His records contain (and he also provides) three DA Forms 4856 rendered during his initial entry training which show he was counseled regarding his tattoos.

	a.  On 25 September 1997, he was counseled by a sergeant first class (SFC) who advised him that:

"Soldiers are expected to maintain and present a professional military appearance while in uniform.  In accordance with AR [Army Regulation] 670-1 [Wear and Appearance of Army Uniforms and Insignia] tattooing in areas of the body that would cause the tattoo to be exposed while in Class A Uniform distracts from a Soldierly appearance.  The tattoo on your body (legs), would not present a professional appearance.  It is offensive, and vulgar.  You was [sic] given the chance to have it remove [sic], or cover [sic] up.  You turn [sic] it down, therefore, I have no other choice but to recommend entry level separation, in accordance with AR 635-200, Chapter 11.

I am counseling you for the reason(s) noted above.  If this conduct continues, action maybe [sic] initiated to separate you from the Army under AR 635-200, Chapter 11.  If you are separated under the provisions of Chapter 11 you will receive an Entry Level Separation (uncharacteristic service) and you may be ineligible for benefits administered by the Department of Veterans Affairs and other agencies.  If you want to enlist at a later date, you may [have] to wait for a period of two years from the date of separation, and you must obtain a waiver.  You may also face difficulty in obtaining civilian employment, as employers may have low regard for Entry Level Separations. Although there are agencies to which you may apply to have the character of your discharge changed, it is unlikely that any such application will be successful."

The applicant indicated his concurrence with the counseling and authenticated the document with his signature.

	b.  On 25 September 1997, he was counseled by his first sergeant (1SG) who advised him that:

"I am counseling you concerning the tattoos on your calves.  AR 670-1 states that tattoos cannot be seen while in uniform.  The two tattoos that you have on your legs distracts [sic] from a Soldierly appearance.  The two tattoos that you have on your legs are offensive and very vulgar.  You have rejected the opportunity to have the tattoos removed.  It is in the best interest of the Army and yourself to be discharged under AR 635-200, Chapter 11.”

“I am counseling you for the reason(s) noted above.  If this conduct continues, action maybe [sic] initiated to separate you from the Army under AR 635-200, Chapter 11.  If you are separated UP of Chapter 11 you will receive an Entry Level Separation (uncharacteristic service) and you may be ineligible for benefits administered by the Department of Veterans Affairs and other agencies.  If you want to enlist at a later date, you may [have] to wait for a period of two years from the date of separation, and you must obtain a waiver.  You may also face difficulty in obtaining civilian employment, as employers may have low regard for Entry Level Separations. Although there are agencies to which you may apply to have the character of your discharge changed, it is unlikely that any such application will be successful."

The applicant indicated his concurrence with the counseling and authenticated the document with his signature.

	c.  On 25 September 1997, he was counseled by his company commander who advised him that:

"Under the provisions of AR 635-200, Chapter 11, I am initiating action to separate you from the United States Army.  The reasons for my proposed action:  inability to adapt to military standards, lack of respect/discipline to become a quality Soldier, and failure to remove tattoos on legs."

The applicant indicated his concurrence with the counseling and authenticated the document with his signature.

5.  On 1 October 1997, the applicant's unit commander notified him he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 11.  The specific reason for the proposed action was the applicant's failure to meet and maintain the standards expected of an Infantry Soldier and that he either could not or would not adjust due to his inability to adapt, disruptive influence to unit morale, and lack of respect/discipline to become a quality Soldier, and failure to remove tattoos on his legs.  The commander further stated the final decision in the applicant's case rested with the separation authority and, if approved, the applicant would receive an entry-level separation with uncharacterized service.  The commander advised him of his rights and the impact of the discharge.

6.  On 2 October 1997, the applicant acknowledged receipt of the proposed separation notification.  He was advised by consulting legal counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 11, for entry-level status performance and conduct and its effects, the rights available to him, and the effects of any action taken by him in waiving any of his rights.

7.  On 2 October 1997, the separation authority approved the proposed separation action and directed the applicant's entry-level status separation under the provisions of Army Regulation 635-200, chapter 11, with uncharacterized service.

8.  Headquarters, United States Infantry Center, Fort Benning, GA, Orders 282-2201, dated 9 October 1997, reassigned the applicant to the U.S. Army Transition Point for transition processing with a reporting date of 13 October 1997 and discharge date of 14 October 1997.
9.  His DD Form 214 contains the following pertinent information:

* item 12b shows he was separated on 14 October 1997
* item 24 shows his service as "UNCHARACTERIZED"
* item 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 11
* item 26 shows his Separation Program Designator (SPD) code as "JGA"
* item 28 shows his reason for separation as "ENTRY LEVEL STATUS//PERFORMANCE AND CONDUCT"

10.  His record is void of any evidence and he has failed to provide any evidence that shows he was a victim of sexual discrimination or that he was told he would receive an honorable discharge or that his uncharacterized discharge had been changed to honorable.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life; or they lacked the aptitude, ability, motivation, or self discipline for military service; or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of a lack of aptitude, ability, motivation, or self-discipline.  An uncharacterized description of service was required for separation under this chapter.

12.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated that SPD code JGA was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, for "entry level status performance and conduct.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his service characterization should be changed was carefully considered.


2.  The evidence shows the applicant was counseled on numerous occasions regarding the adverse impact of failing to remove his tattoos.  Three members of the applicant's leadership chain made attempts to rehabilitate him, yet he elected to retain his tattoos with the understanding that separation action would be initiated.

3.  In spite of his contentions, the evidence also shows the applicant was informed in writing that he would receive an entry-level separation with uncharacterized service and of the potential effects that a discharge of this nature could have on his future.

4.  The applicant failed to achieve minimum standards and as a result, he was discharged under the provisions of Army Regulation 635-200, chapter 11, for entry-level status performance and conduct. 

5.  Army policy mandates that the service of Soldiers separated for entry-level status performance and conduct will be uncharacterized.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier did not serve on active duty long enough for his or her service to be rated.  As a result, there is no basis for changing a properly-assigned character of service.

6.  His record is void of any evidence and he has failed to provide any evidence that shows he was a victim of sexual discrimination or that he was told he would receive an honorable discharge or that his uncharacterized discharge had been changed to honorable.  

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)                                         AR20140000300



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ABCMR Record of Proceedings (cont)                                         AR20140000300



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