IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150000808 


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 honorable.

2.  The applicant states, in effect:

* he was discharged under the provisions of chapter 15 (Discharge for Homosexual Conduct), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel)
* he was told he would be receiving an honorable discharge
* when he finally got his DD Form 214 (Certificate of Release or Discharge from Active Duty) the character of service was shown as uncharacterized
* he signed a DA Form 669 (Army Continuing Education System (ACES) Record) under the premise he would be receiving an honorable discharge
* the DA Form 669 clearly states he would be receiving a fully honorable discharge; he therefore contends an injustice has occurred

3.  The applicant provides a DA Form 669 and DD Form 214 (as amended by the Army Discharge Review Board (ADRB) decision on 5 December 2012).

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 21 June 2001.  After completing basic combat training, he was sent to Fort Lee, VA on 31 August 2001 to attend advanced individual training (AIT) so as to be awarded military occupational specialty 92A (Automated Logistical Specialist).  He was never assigned to a permanent duty station.

3.  His official military personnel file (OMPF) contains two DA Forms 4187-E (Personnel Action) showing a duty status change from present for duty to absent without leave (AWOL) at 2100 hours, 30 September 2001, then returning from AWOL to a present for duty status at 0440 hours, 29 October 2001.  His OMPF does not show what, if any, action was taken by his unit for this period of AWOL.

4.  On 29 November 2001, his unit commander notified the applicant he was being considered for elimination action under the provisions of chapter 15, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  This notification came both in the form of a memorandum addressed to the applicant and a DA Form 4856 (Developmental Counseling Form).  

	a.  In the memorandum, the commander stated:

* the action was based on the applicant's admission, on 5 November 2001, that he was a homosexual and had the propensity or intent to engage in homosexual acts
* the applicant would be recommended for an entry-level separation; however, intermediate commanders and the separation authority were not bound by this recommendation

	b.  In addition to what was in the memorandum, the counseling form stated the unit commander would be recommending the applicant's discharge be uncharacterized.  The unit commander further stated, with this characterization of service, the applicant could face hardship in the civilian sector, for example when seeking employment. 

5.  On 30 November 2001, the applicant consulted legal counsel, was advised of the basis for the proposed separation action, the effects of this action, his rights and the effect waiving those rights would have.  He requested:

* consideration of his case by an administrative separation board (later that same date he waived his right to this board contingent upon receiving either an uncharacterized or honorable characterization of service)
* to personally appear before the administrative separation board (later waived)
* to present statements in his own behalf (later waived)
* legal counsel to represent him

6.  On 13 December 2001, the separation approved the unit commander's recommendation and directed the applicant receive an uncharacterized discharge.  On 21 December 2001, the applicant was discharged accordingly.

7.  His DD Form 214, as amended by the ADRB, shows he completed 5 months and 2 days of net creditable service with 29 days of lost time.  He was not authorized or awarded any awards or decorations.

8.  Based upon his application, the ADRB directed, on 5 December 2012, not to change the characterization of the applicant's service, but to amend and reissue his DD Form 214 with the following revisions:

* narrative reason to Secretarial Authority under the provisions of 
chapter 5 (Separation for Convenience of the Government - Secretarial plenary authority), Army Regulation 635-200
* separation code (SPD) to JFF
* reentry code (RE) to RE-1

9.  The applicant provides a DA Form 669, showing an "as of" date of 6 November 2001, and containing the following entry:

I have received counseling on Veterans' Education Benefits.  I am being discharged with a fully honorable discharge under Chapter 15.  However, I am not completing my full obligated enlistment and will, therefore, lose my benefits.

10.  Army Regulation 635-200, in effect at the time, prescribes policies and procedures for enlisted separations.  

	a.  Paragraph 3-7a provides that an honorable characterization of service was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	b.  Paragraph 3-9 states a separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status.  Except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty, the characterization will be shown as uncharacterized.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty (emphasis added) or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. 

	c. Paragraph 5-3 addresses separation as directed under the prerogative of the Secretary of the Army and is normally exercised on a case-by-case basis when no other provision of this regulation applies.  It may be used for a specific class or category of Soldiers. 

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures for the completion of the DD Form 214.  As to character of service, it states the source documents include separation approval authority documentation and the separation order. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his uncharacterized discharge be changed to honorable.  To receive an honorable discharge, a Soldier's service must generally meet standards of acceptable conduct and duty performance.  The evidence of record, however, demonstrates he did not perform satisfactorily as a Soldier.  While in a training status, he went AWOL for a period of 29 days.

2.  By regulation, a separation will be described as an entry-level if processing is initiated while a member is in an entry-level status (within the first 180 days of continuous active military service for Regular Army Soldiers), except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

3.  The applicant provides an ACES form which contains an entry essentially stating he would be receiving an honorable discharge.  Although this form indicates the proposed receipt of an honorable discharge by education counselors, it is not an appropriate source document.  By regulation, the source document for the characterization of service is the separation authority’s approval documentation.  

4.  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 that the Soldier has not been in the Army long enough for his/her character of service to be rated as honorable or otherwise.  

5.  The applicant received the appropriate characterization of service.  He does not provide any compelling evidence showing it was made in error or was unjust, or that the findings of the ADRB should be changed.  Therefore, there is insufficient evidence to revise the characterization of his service.

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)                                         AR20150000808





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ABCMR Record of Proceedings (cont)                                         AR20150000808



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