IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150009300 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150009300 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150009300 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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing the character of service from uncharacterized to honorable. 2. The applicant states, in effect: * he has a hard time remembering things because of a learning disability * although he passed the entrance examination for the Army, he had spent a number of years in the special education program of his school system * he has worked in manual labor jobs and has always been viewed by his employers as having a good work ethic 3. The applicant provides his DD Form 214 for the period ending 27 October 1995 and a letter from the National Personnel Records Center, dated 20 May 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 Regular Army on 18 August 1995. 3. He received formal counseling on: * 17 September 1995 - for failing to follow instructions, to shave, report for formation, and for not shining his footgear * 18 September 1995 - for failing to shine his boots, not displaying a wash cloth and towel, not securing the equipment he had been issued (Table of Allowances - 50 (TA-50) equipment), and not following instructions * 25 September 1995 - for failing to obey a direct order from a drill sergeant, for not obeying an order to file paperwork, and not fulfilling his duties as platoon clerk * 25 September 1995 (second counseling that date) - for failing to follow instructions and not paying attention in class * 25 September 1995 (third counseling that date) - performance counseling for the prior four weeks; he was advised he could face separation under the provisions of chapter 11 (Entry Level Performance and Conduct), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) * 12 October 1995 - for failing to adapt to the military service based on a lack of responsibility and following a behavioral health evaluation that he was being recommended for separation 4. On 27 September 1995, a psychologist with a psychology doctorate conducted a mental status evaluation of the applicant. He found: * behavior, level of alertness, level of orientation, mood or affect, thinking process, and thought content were all within normal limits * the applicant appeared to have a history of learning difficulties, needing extra help, and being in special education * the applicant stated he had given his best effort, but could not seem to understand/learn concepts and skills * the applicant further acknowledged he could not keep up and did not want to endanger someone else as a result of his limited ability to learn 5. On 13 October 1995, his commander notified him he was initiating action to effect his elimination from the Army prior to the expiration of his current term of service under the provisions of Army Regulation 635-200, chapter 11. a. The stated reason was due to the applicant's failure to adapt emotionally, for being unable to retain information, and because he required constant supervision. b. A behavioral health specialist had stated the applicant was unable to keep up and could not seem to learn concepts or skills. c. He was advised of the following rights: * consult with consulting counsel * submit statements in his own behalf * obtain copies of the documents that would be sent to the separation authority * request a separation physical * waive the above rights in writing 6. On 13 October 1995, the applicant acknowledged he: * had been afforded the opportunity to consult with counsel; he waived his right to consult with counsel in writing * did not desire to make a statement in his own behalf * did not request copies of the documents to be sent to the separation authority * did not request a separation physical 7. On 25 October 1995, the appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11. He was discharged accordingly. 8. His DD Form 214 shows he was discharged on 27 October 1995 under the provisions of Army Regulation 635-200, chapter 11 by reason of entry level performance and conduct. His DD Form 214 also shows in: * item 24 (Character of Service) – Uncharacterized * item 26 (Separation Code) – JGA * item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct REFERENCES: Army Regulation 635-200, chapter 11, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status. a. Separation was warranted when unsatisfactory performance or minor disciplinary infractions were evidenced by: * inability * lack of reasonable effort * failure to adapt to the military environment b. The policy applied to Soldiers who: * were in an entry-level status, and, before the date of initiation of separation action, had completed no more than 180 days of continuous active service * could not adapt socially or emotionally to military life * could not meet the minimum standards prescribed for successful completion of training because of a lack of aptitude, ability, motivation, or self-discipline * had demonstrated character or behavior characteristics not compatible with satisfactory continued service * failed to respond to counseling c. Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service. d. The regulation required an uncharacterized description of service for separation under chapter 11. e. 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. f. 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. DISCUSSION: 1. The evidence of record shows the applicant's separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. The record further shows he had less than 180 days of creditable active service at the time of initiation of the separation. Based on the requirements of the regulation in effect at the time, his service was listed as uncharacterized. 3. An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier was not in the Army long enough for his or her character of service to be rated as honorable or otherwise. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009300 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009300 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2