IN THE CASE OF:  

		BOARD DATE:  7 April 2015

		DOCKET NUMBER:  AR20140014226 


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 change his characterization of service from uncharacterized to general, under honorable conditions.

2.  The applicant states, in effect, it is an injustice to have been given an uncharacterized discharge because he did not receive an x-ray.  He was given an x-ray and magnetic resonance imaging (MRI) scans in 2006 when they found a “binen” [sic] “tomar” [sic] on his left leg.  He attempted to use his discharge to get housing, in order to move out of his parent's house, but an honorable or general under honorable conditions [discharge] was needed to be higher on the list.   

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and seven pages of private medical records from May 2006. 

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 enlisted in the Regular Army on 14 May 1998.  He was assigned to Fort Jackson, SC, for the purpose of completing basic combat training; however, he did not complete training.

3.  His record reveals a DA Form 4856 (General Counseling Form) in his separation packet, dated 8 May 1998, which shows he was counseled by his Company Commander for entry level separation (ELS), regarding his refusal to participate in the PTRP (Physical Training and Rehabilitation Program), which was going to result in the initiation of paperwork to separate him from military service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11.  The applicant concurred with his initials and signed and dated the form on the same date.  

4.  On 7 May 1998, the applicant's commander initiated action to discharge him under the provisions of Army Regulation 635-200, chapter 11.  As the basis for his recommendation, the commander cited his lack of motivation/refusal to participate in the PTRP.  

5.  On this same date, the applicant acknowledged receipt of the separation notification.  He stated he understood that, if approved, he would receive an uncharacterized ELS discharge.  He further acknowledged he had been afforded the right to counsel; however, he elected to waive his rights in writing and did not submit any statements in his own behalf.

6.  On 9 May 1998, the separation authority approved his separation action and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 11, with a character of service as uncharacterized.

7.  On 14 May 1998, he was discharged accordingly.  He completed 24 days of net active service.  The DD Form 214 he was issued at the time shows in:

* Item 23 (Type of Separation) – Discharge
* Item 24 (Character of Service) – Uncharacterized
* Item 25 (Separation Authority) – Army Regulation 635-200, chapter 11
* Item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct

8.  The applicant's separation was based on his lack of motivation and refusal to participate in the PTRP; however, his record does not detail any training-related injuries he suffered during his period of active military service. 

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade to his discharge within its 15-year statute of limitations.  

10.  The applicant provides seven pages of private medical documents, dated on or about 9-12 May 2006, which outline an operation that was conducted to correct a diagnosis of "cartilage lesion, left distal femur" on the applicant. 

11.  The PTRP was established as a means to provide physical rehabilitation and physical conditioning to basic trainees who were unable to continue basic training because of training-related injury(ies).  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states in:

     a.  Chapter 3, 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 (emphasis added).

     b.  Chapter 11 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS.  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.

     c.  Paragraph 3-7a provides 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.

     d.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's request, in effect, to change his characterization of service from uncharacterized to general, under honorable conditions was carefully considered. 

2.  The applicant contends that it was an injustice to have been given an uncharacterized discharge because he did not receive an x-ray.  He states he was given an x-ray and MRI scans in 2006 when his private medical doctors conducted a surgical procedural on his left leg.  This operation occurred approximately 8 years after he was discharged from the service.  He provides no evidence nor is there any in his records to indicate that his injury happened in service or was the cause that resulted in his discharge.  There is a presumption of regularity in the conduct of government affairs. 

3.  He also states he attempted to use his discharge to get housing, in order to move out of his parent's house, but an honorable or general under honorable conditions [discharge] was needed to be higher on the list.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  A chapter 11 separation is used for entry-level Soldiers not qualified for retention for one of several reasons, including an inability to meet the minimum standards prescribed for successful completion of training because of a lack of aptitude, ability, motivation or self-discipline.  The evidence of record shows the applicant failed to achieve the 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.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

5.  Army policy mandates that the service of Soldiers separated for entry-level status performance and conduct will be uncharacterized.  The issuance of a general discharge to an entry-level Soldier 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.  No such unusual circumstances are noted in the applicant's record; therefore, there is an insufficient evidentiary basis to support any change to the characterization of his service.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.
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)                                         AR20100014926



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ABCMR Record of Proceedings (cont)                                         AR20140014226



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