IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150005161 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. 2. The applicant states: a. He was injured during boot camp while on field maneuvers and conducting physical training. He was awarded a 20 percent (%) service-connected disability rating by the Department of Veterans Affairs (VA) for his injuries. He would like to join veterans’ organizations and volunteer his time as an honorably-discharged veteran. He is unable to join any of these organizations with his entry-level separation. He conducted himself honorably during the short duration of his military service. He followed orders and performed his duties following his injuries. b. At the time of his separation he was given the choice between an entry-level separation or a medical or general discharge. He chose the entry-level separation because he wanted to reenter the Army after his injuries healed. He was told with a medical or a general discharge this would not be an option. It was his intent to reenlist when his injuries healed. However, his injuries did not heal as he had hoped. He filed for VA service-connected benefits and within a few months he was approved with a 20% rating for his leg injuries incurred during boot camp. He chose to serve in the Army and did not want to be separated, but he did not understand the options afforded him at the time. 3. The applicant provides no evidence. 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 4 October 1995. He did not complete basic combat training and advanced individual training. 3. He received counseling on/for: a. 1 December 1995 – an entry level separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, based on the recommendation of his superior noncommissioned officers (NCO) because he refused to train. Since his injury he had shown a lack of motivation toward the Army and training. His medical profile had expired and his doctors felt he could begin training again, but he refused. b. 4 December 1995 – an entry level separation because he refused to train. He was medically cleared to begin training on 20 November 1995, but he repeatedly refused the orders of his superior NCOs. He was advised that disobeying a direct order was a serious offense and his insubordinate attitude would not be tolerated. 4. His record does not contain any evidence showing he entered the medical evaluation process to determine his medical fitness for duty. 5. On 5 December 1995, the applicant's company commander notified him of his intent to separate him under the provisions of Army Regulation 635-200, paragraph 11-3a, for entry level performance and conduct with an uncharacterized discharge. He advised the applicant of his rights. 6. On 5 December 1995 the applicant acknowledged receipt of his separation notification. He also acknowledged he understood the procedures and rights that were available to him and he understood he would receive an uncharacterized discharge. He waived his rights and elected not to submit a statement. 7. On 6 December 1995 the separation authority approved his discharge and waived the requirement for a rehabilitative transfer. 8. Accordingly, he was discharged in pay grade E-1 on 11 December 1995. He was credited with completing 2 months and 8 days of net active service. His service was characterized as "Uncharacterized." 9. There is no indication he applied to the Army Discharge Review Board within that board’s 15-year statute of limitations. 10. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 11 – the criteria for the separation of Soldiers who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or who failed to respond to formal counseling. The regulation essentially required that the Soldier must had voluntarily enlisted; must be in basic, advanced individual, on the job or in service school training, and not completed more than 180 days of continuous active duty service on their current enlistment at the time his/her separation action was initiated. The Soldiers could be separated when they had demonstrated that they were not qualified for retention due to failure to adapt socially or emotionally to military life; could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or had demonstrated character and behavior characteristics not compatible with satisfactory continued service. An uncharacterized discharge was required upon separation. b. Chapter 3 – described the different types of characterization of service. An uncharacterized separation was an entry-level separation. A separation would be described as an entry-level separation if processing was initiated while a member was in entry-level status, except when characterization under other than honorable conditions was authorized and was warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determined that characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. For the purposes of characterization of service, the Soldier’s status was determined by the date of notification as to the initiation of separation proceedings. Upon enlistment, a Soldier qualified for entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active service after a service break of more than 92 days of active service. c. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. d. Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. DISCUSSION AND CONCLUSIONS: 1. The applicant's separation action was initiated due to his refusal to train after he had been medically cleared to train. He acknowledged the reason for and the type of discharge he would receive. As he was separated prior to completing 180 days of active service, he was in an entry-level status. 2. A Soldier’s performance, aptitude and attitude is continuously reviewed during their first 180 days of continuous active military service. When separated under chapter 11, an uncharacterized description of service was required. An honorable characterization could be given only if the service clearly warranted it by unusual circumstances of personal conduct and performance of military duty and was approved by the Secretary of the Army. 3. An entry-level status (uncharacterized) discharge is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier did not serve on active duty long enough for his or her character of service to be rated. He was discharged after completing only 2 months and 8 days of net active service. 4. There is no evidence of record and he provided none showing he was erroneously or unjustly denied entry into the medical review process under the provisions of Army Regulation 635-40. His administrative discharge was accomplished in compliance with applicable law and regulation in effect at the time with no indication of procedural error which would have jeopardized his rights. 5. The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for joining any veteran’s service organization or similar groups. Each case is individually decided based upon its merits. 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) AR20150005161 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005161 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1