IN THE CASE OF:	   

		BOARD DATE:	  1 October 2014

		DOCKET NUMBER:  AR20140002997 


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 his uncharacterized discharge be changed to an honorable discharge (HD).

2.  The applicant states:

	a.  his discharge is inequitable because it is based on one isolated incident that involved him getting injured;

   b.  he was subsequently separated from the Army with an uncharacterized discharge without being offered or given any compensation for his eye injury; and
   
   c.  at this point, he is not looking for compensation, just to receive an HD.
   
3.  The applicant provides no additional documents.

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 record shows he enlisted in the U.S. Army Reserve (USAR) on 31 December 1990, for a period of 8 years.  On 8 August 1991, he was ordered to active duty training (ADT) and entered active duty.

3.  His record contains four DA Forms 4856 (General Counseling Form) dated between 21 August and 27 September 1991 which show he was formally counseled for the following:

* failing to past a diagnostic Army Physical Fitness Test on 21 August 1991
* failing to qualify with the M-16 Rifle on 5 separate occasions
* lack of motivation and discipline, poor attitude, and inability to maintain Army standards
* recommendation for entry level status (ELS) discharge

4.  On 26 September 1991, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

5.  On 27 September 1991, the unit commander informed the applicant of his intent to process him for separation under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), (ELS Performance and Conduct).  The unit commander cited the applicant's demonstrated failure at basic rifle marksmanship as the basis for the action.  The applicant acknowledged receipt of the separation notification and his understanding that if approved, he would receive an uncharacterized entry level separation.


6.  On 1 October 1991, the separation authority approved the applicant's discharge while in an ELS status.  The separation authority directed that the applicant be separated under the provisions of chapter 11, Army Regulation 
635-200.

7.  On 4 October 1991, the applicant was discharged accordingly, having completed 1 month and 27 days of active military service.  The DD Form 214 shows he was discharged by reason of "entry level status performance and conduct" and that he received an "uncharacterized" characterization of service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on ELS separations.  It states that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated.

10.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS status.  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  A general discharge is not authorized under ELS conditions and an honorable discharge is rarely ever granted.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his uncharacterized discharge should be changed to an honorable.

2.  His DD Form 214 shows he completed 1 month and 27 days of active military service at the time of his separation.  As a result, the separation action was initiated while he was in an ELS status.  Further, the record shows the applicant's service was described as uncharacterized as a result of his being discharged while in an ELS status.  A Soldier is in an ELS status, or probationary period, for the first 180 days of continuous active duty.

3.  The issuance of a general discharge to members in an ELS status is not authorized and an honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  Given no such unusual circumstances are present in the applicant's record there is an insufficient evidentiary basis to support changing the characterization of his service to honorable.

4.  The record shows the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140002997





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ABCMR Record of Proceedings (cont)                                         AR20140002997



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