BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010313 


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 the characterization of his service be changed from uncharacterized to honorable.

2.  The applicant states he served honorably.  He had issues with an injury to his back and his wife was handicapped and his absence was very difficult for her.

3.  The applicant provides his DD Form 214 (Certificate of Release or 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.  On 13 June 1988, he enlisted in the Regular Army.  He completed basic combat training (BCT); however, he did not complete advanced individual training (AIT).  

3.  On 11 August 1988, he was assigned to AIT for military occupational specialty (MOS) 88K (Watercraft Operator) at Fort Eustis, VA.

4.  On 17 August 1988, he was counseled by his unit commander.  She stated his training records from BCT indicated he had never passed the Army Physical Fitness Test (APFT).  She advised him he had to pass an APFT in order to graduate from AIT.  He must put forth every effort to get himself in shape.  He must get motivated to pass the test.  He was advised that he could be administratively separated/discharged prior to his expiration of his term of service (ETS).  He acknowledged that continued behavior of this sort could result in his discharge with a general discharge or an under than honorable conditions discharge.  Issuance of these types of discharges could cause substantial prejudice in civilian life.

5.  On 17 August 1988, he was counseled by a sergeant/E-5 on the standards required for his unit.  He was advised he was required to pass an APFT in order to graduate from AIT.  He was put on a special physical training program.

6.  A memorandum, dated 6 September 1988, requested the applicant be recycled into another class.  Of the 230 academic hours required in the course for MOS 88K he had missed 46 hours which comprised 20 percent of the course.

7.  On 13 September 1988, his commander notified him he was initiating action to separate him from the Army prior to the expiration of his current term of service under the provisions of chapter 11 of Army Regulation 635-200 (Enlisted Personnel Separations).  His separation would be uncharacterized or entry level separation.  The specific reasons for her proposed actions were:

	a.  He had failed every APFT since his enlistment.  He failed four tests during BCT and had failed to take an APFT in AIT.  He received an APFT waiver upon completion of BCT; however, the waiver indicated he lacked the aptitude and motivation to pass.

	b.  He failed to meet minimum requirements to complete the Watercraft Operator Course.

	c.  He failed to respond to counseling and failed to meet minimum standards of aptitude and self-discipline that were needed in a Soldier in the U.S. Army.

8.  His commander advised him he had the right to:

* consult with military legal counsel or civilian counsel (at his own expense)
* submit statements in his own behalf
* obtain copies of the documents supporting his separation that would be sent to the separation authority
* waive his rights in writing

9.  On 14 September 1988, the applicant acknowledged receipt of his commander's notification.  He did not desire to make a statement in his own behalf.  He requested consulting counsel and a separation medical examination if his separation was approved.

10.  On 16 September 1988, the appropriate authority approved the separation of the applicant under the provisions of chapter 11 of Army Regulation 635-200 and the waiver of a rehabilitative transfer.  It was directed that the applicant be discharged from the military and that his service would be uncharacterized.  

11.  On 22 September 1988, he was discharged.  He completed 3 months and 
10 days of continuous active service that was uncharacterized.

12.  Chapter 11 of Army Regulation 635-200, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status.

	a.  Separation was warranted when unsatisfactory performance or minor disciplinary infractions was evidenced by:

* inability
* lack of reasonable effort
* failure to adapt to the military environment

	b.  The policy applied to Soldiers who:

* were in an entry level status and, before the date of the initiation of 	separation action, had completed no more than 180 days of continuous 	active duty
* could not or would not adapt socially or emotionally to military life
* had demonstrated character and behavior characteristics not 	compatible with satisfactory continued service
* had failed to respond to counseling

	c.  Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service.

	d.  The regulation required an uncharacterized description of service for separation under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he had issues with his back injury and his wife was handicapped.

2.  The record does not show he suffered a back injury or that he was treated for a back injury.  He had not passed an APFT since enlisting in the Army.  He was counseled on two occasions advising he had to pass the APFT in order to graduate from AIT.  There is no evidence a back injury prevented him from passing the APFT.

3.  He failed to meet the academic requirements for completion of the Watercraft Operator Course.  It was recommended that he be recycled.

4.  There is no evidence in his military records and he has not provided any substantive evidence showing a back injury or his wife's handicap caused his failure to pass the APFT or his failure of the academic standards for the Watercraft Operator Course.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.

6.  In view of the foregoing, there is no basis to change the characterization of his service.

7.  The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier had not been in the Army long enough for his character of service to be rated as honorable or otherwise.


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)                                         AR20140010313



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ABCMR Record of Proceedings (cont)                                         AR20140010313



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