IN THE CASE OF:    

		BOARD DATE:  23 July 2015	  

		DOCKET NUMBER:  AR20140020932 


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

2.  The applicant states he was separated from service due to a severe injury to his right shoulder for which he receives compensation for a service-connected disability rated at 20 percent.  He further states the characterization of his service has been a stumbling block in applying for Federal jobs although he is currently a Federal employee.

3.  The applicant provides a letter from the Department of Veterans Affairs (VA) and a copy of 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.  The applicant's records show he enlisted in the Regular Army on 21 August 1995.  He was assigned to Company D, 1st Battalion, 50th Infantry Regiment, U.S. Army Infantry Training Brigade, Fort Benning, GA.  

3.  On 31 August 1995, the applicant received his initial counseling regarding the platoon, company, and battalion policies.

4.  On 15 October 1995, he was counseled for being a distraction to the formation, loss of military bearing, and being disrespectful.  On 24 October 1995, he was recommended for nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

5.  On 17 November 1995, he was counseled for being absent from his appointed place of duty.  On 18 November 1995, he was counseled for not using his chain of command, numerous occasions of poor performance, disregarding company policies and a violation of the UCMJ.  It was noted that he would be recommended for an entry-level separation.

6.  On 28 November 1995, he received nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to obey a lawful order by refusing to take his shots, in violation of Article 92, UCMJ. 

7.  On 6 December 1995, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11 (Entry-Level Status), because he had a negative attitude towards the Army and taking orders.  It was further noted the applicant had been on profile since 
16 October 1995 for a shoulder injury.  His intent was to restart; however, the applicant's negative attitude and lack of respect demanded an entry-level separation.

8.  On 7 December 1995, the applicant acknowledged receipt of the separation notification in accordance with Army Regulation 635-200, chapter 11.  He waived his right to consulting counsel and elected not to submit a statement in his own behalf.  He acknowledged that he understood that VA and other benefits normally associated with completion of active service would be affected if his uncharacterized entry-level discharge was approved.

9.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation
635-200, chapter 11.  He recommended an entry-level separation.  Accordingly, the separation authority approved the applicant's discharge.  

10.  On 21 December 1995, the applicant was discharged in accordance with Army Regulation 635-200, chapter 11, by reason of entry-level performance and conduct with an uncharacterized characterization of service.  The DD Form 214 he was issued at the time confirms he completed 4 months and 1 day of creditable active service. 

11.  There is no indication he applied to the Army Discharge Review Board for a change of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the regulation, 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 they were not qualified for retention because they:

* could not adapt socially or emotionally to military life
* lacked the aptitude, ability, motivation, or self discipline for military service
* demonstrated characteristics not compatible with satisfactory continued service

13.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training.  Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active service before the date of the initiation of separation action).  An uncharacterized description of service was required for separation under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that while in training the applicant appears to have lacked motivation and self-discipline and showed an inability to adjust to the military environment.  Accordingly, his immediate commander recommended his separation under the provisions of Army Regulation 635-200, chapter 11.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his separation accurately reflects his overall record of service.

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separation action is started within the first 
180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  A general characterization of service is not authorized.

3.  An uncharacterized discharge is neither positive nor negative; it is not "derogatory."  An uncharacterized character of service 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/her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request to change his character of service 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)                                         AR20140020932





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ABCMR Record of Proceedings (cont)                                         AR20140020932



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