IN THE CASE OF: BOARD DATE: 25 February 2016 DOCKET NUMBER: AR20150007554 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 that his uncharacterized discharge be changed to an honorable discharge. 2. The applicant states he was injured after entering the Army and sent home without the opportunity of reviewing and signing his DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant provides a copy of his DD Form 214. 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 (RA) on 6 August 1996 for a period of 3 years. 3. He was assigned to Company B, 1st Battalion, 38th Infantry, U.S. Army Infantry Training Center, Fort Benning, GA, on 23 September 1996. 4. A Commander's Counseling, Rehabilitative, and Adverse Information Summary shows the applicant was counseled as follows on: Date Subject/Reason 25 September 1996 Failure of the Army Physical Fitness Test (APFT) Diagnostic 6 October 1996 Lack of motivation and discipline 8 October 1996 Due to Profile (no running, jumping, marching for 3 days) 10 October 1996 Failure to zero weapon 11 October 1996 Falling out of the platoon run 14 October 1996 Failure of the APFT Diagnostic #2 16 October 1996 Failure of weapons qualification 25 October 1996 Recommended for entry level separation 2 November 1996 Entry level separation 5. On 25 October 1996, the company commander notified the applicant that separation action was being initiated on him under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (Entry Level Separation), paragraph 11-2, based on lack of motivation and lack of discipline. The letter of notification shows the applicant was advised of his rights. The commander also stated he was recommending the applicant receive an uncharacterized entry level separation. The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel. 6. On 25 October 1996, the applicant confirmed he was advised by the company commander of the basis for the contemplated action to separate him from the Army with an entry level separation – uncharacterized. The applicant also acknowledged with his signature that he had been afforded the opportunity to consult with appointed counsel and that he declined the opportunity to do so. The applicant waived his rights in writing, waived consulting counsel, and elected not to submit statements in his own behalf. In addition, the applicant elected not to have a medical examination before his discharge. 7. The company commander recommended the applicant be separated from service UP AR 635-200, chapter 11, prior to his expiration term of service with an entry level status separation, and he forwarded the separation action to the approving authority. The basis for the commander's recommended action was the applicant's failure to adapt to the military environment (i.e., lack of motivation and lack of discipline) after having been counseled on numerous occasions. The company commander also requested that rehabilitative transfer of the applicant be waived. 8. On 19 November 1996, the separation authority approved waiver of the applicant's rehabilitative transfer; approved the discharge UP AR 635-200, chapter 11; and directed the applicant be issued an entry level separation – uncharacterized. 9. The applicant's DD Form 214 shows he entered active duty on 6 August 1996 and he was separated from the RA on 3 December 1996 UP AR 635-200, chapter 11, based on entry level performance and conduct. At the time he had completed 3 months and 28 days of net active service. It also shows in: * item 18 (Remarks), in pertinent part, "Excess Leave (Creditable for All Purposes Except Pay and Allowances)--13.0 Days: 19961121 --19961203" * item 21 (Signature of Member Being Separated): "Soldier Not Available To Sign" * item 24 (Character of Service): "Uncharacterized" 10. AR 635-200, in effect at the time, provides the basic authority for the separation of enlisted personnel. a. Chapter 11 sets forth policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status. This policy applied to RA, U.S. Army Reserve, and Army National Guard personnel who were in an entry level status and, before the date of initiation of separation action, had completed no more than 180 days of creditable continuous active duty or initial active duty for training, or no more than 90 days of Phase II under a split or alternate training option. b. Chapter 3 (Character of Service/Description of Separation), in pertinent part, shows in: * paragraph 3-7 (Types of administrative discharges/character of service), 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. This paragraph also provides that only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry level status separation (uncharacterized) is warranted. * paragraph 3-9 (Uncharacterized separations), a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status. This document provides, in pertinent part, that entry-level status terminates 180 days after the Soldier's entry on active duty. 11. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also established standardized policy for preparing and distributing the DD Form 214. Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214. It shows for: * item 21, have the Soldier sign the original in ink using a ballpoint pen. If Soldier is not available to sign (discharged in absentia or physically unable), enter "Soldier Not Available To Sign" * item 24, the authorized entries are Honorable, Under Honorable Conditions (General), Under Other Than Honorable Conditions, Bad Conduct, Dishonorable, and Uncharacterized 12. AR 600-8-10 (Leaves and Passes) prescribes the policies, operating tasks, and steps governing military personnel absences. Chapter 5 (Nonchargeable Leaves and Absences), paragraph 5-23, shows that Soldiers awaiting completion of administrative discharge proceedings may request an indefinite period of excess leave. The general court-martial authority, or his or her designee, is the approval authority. 13. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his uncharacterized discharge should be changed to an honorable discharge because he was injured after entering the U.S. Army and sent home without the opportunity to review and sign his DD Form 214. 2. The evidence of record shows the applicant was issued a temporary profile on 8 October 1996 that restricted him from running, jumping, and marching for a period of 3 days (i.e., through 11 October 1996). There is no evidence of any other medical-related issues. On 25 October 1996, the applicant elected not to have a medical examination before his discharge. a. On 19 November 1996, the separation authority approved the applicant's discharge. b. Records show the applicant was authorized excess leave. Based on the evidence of record, it is reasonable to conclude that he voluntarily requested excess leave to await completion of his administrative discharge proceedings. Records also show he departed his unit on 21 November 1996 and remained in an excess leave status through 3 December 1996. c. Thus, based on his own voluntary decision, he was not available to review and sign his DD Form 214 when he was discharged on 3 December 1996. 3. The evidence of record shows that a separation will be described as an entry level separation with service uncharacterized, if separation action is initiated while a Soldier is in entry level status (i.e., has completed no more than 180 days of creditable continuous active duty). 4. The evidence of record shows the applicant entered active duty on 6 August 1996, was discharged on 3 December 1996, and he completed 3 months and 28 days (i.e. 118 days) of net active service during this period. Thus, the evidence of record confirms the applicant was in an entry level status and his character of service is correctly recorded as "uncharacterized" on his DD Form 214. 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) AR20150007554 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007554 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1