IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150008130 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, an upgrade of her service characterization as shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 June 1996 from uncharacterized to honorable. 2. The applicant states she was discharged due to no fault of her own. She is currently receiving 30 percent (%) service-connected disability compensation from the Department of Veterans Affairs; however, her uncharacterized discharge is preventing her from receiving State veterans benefits. 3. The applicant provides her VA disability award letter, dated 16 February 2015. 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 U.S. Army Reserve (USAR) on 5 November 1993. She entered active duty on 4 August 1994 and was released from active duty on 19 November 1994. 3. She attained the rank/grade of specialist/E-4 prior to being discharged from the USAR on 8 May 1996. 4. She enlisted in the Regular Army on 9 May 1996. Upon her enlistment and entry on active duty, she reported to Fort Lee, Virginia for additional training in military occupational specialty 77F (Petroleum Supply Specialist). 5. She was referred to Community Mental Health for a mental status evaluation on 20 May 1996, following her attempted suicide on 18 May 1996. 6. She underwent a mental status evaluation on 20 May 1996, wherein the examining psychiatrist determined: a. The applicant was found to be of normal behavior, fully alert and oriented, with an anxious and depressed mood, a clear thought process, normal thought content, and good memory. b. The applicant was mentally responsible, with the mental capacity to understand and participate in [separation board] proceedings. The applicant met the retention standards found in Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). c. The applicant's diagnosed conditions included: * Adjustment Disorder with Mixed Anxiety and Depressed Mood with Suicidal Gesture (Axis I) * R/O Personality Disorder Not Otherwise Specified (NOS) with Strong Borderline and Dependent Traits (Axis II) d. Further rehabilitative efforts would not be effective. 7. The applicant's commander informed her on 3 June 1996 of her intent to process the applicant for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11. As the basis for her recommendation, the commander cited the applicant's diagnosed adjustment disorder from Community Mental Health. The applicant acknowledged receipt of the notification memorandum. 8. Following consultation with counsel on 4 June 1996, the applicant acknowledged the basis for the proposed separation action, the rights available to her, and the effects of any action taken by her in waiving her rights. She requested representation by counsel throughout her separation process. 9. Her commander formally recommended her separation from the Army on 10 June 1996, under the provisions of Army Regulation 635-200, chapter 11, citing the applicant's inability to adjust to the military environment since her arrival at Fort Lee. 10. The separation authority approved the applicant's separation action on 13 June 1996, under the provisions of Army Regulation 635-200, chapter 11, and directed that her service be uncharacterized. 11. The applicant was discharged on 19 June 1996, following the completion of 4 months and 27 days of creditable active service during this period, 3 months and 16 days of prior active service, and 1 year, 11 months, and 2 days of prior inactive service. The DD Form 214 she 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 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that 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 a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. b. 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. c. 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. d. Chapter 11 provides that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life. Entry level status is defined as the first 180 days of continuous active duty. It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of her service characterization was carefully considered. 2. The evidence of record confirms the applicant, while in training, was separated by reason of entry level performance and conduct on 19 June 1996. At that time, she had been on active duty for 4 months and 27 days. 3. The applicant's separation action was initiated prior to her completion of 180 days of continuous active military service. The record shows her separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and her rights were fully protected throughout the separation process. 4. The applicant's record also shows her character of service was described as uncharacterized as a result of her ELS. During the first 180 days of continuous active military service, a member's service is under review. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrants 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. 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 her service. A general characterization of service is not authorized. 5. The entry-level separation is given regardless of the reason for separation. 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 or her character of service to be rated as honorable or otherwise. 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 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008130 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1