IN THE CASE OF: BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011344 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: 28 June 2016 DOCKET NUMBER: AR20150011344 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: 28 June 2016 DOCKET NUMBER: AR20150011344 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) to show: * the characterization of his service as honorable vice uncharacterized * the narrative reason for separation as for the convenience of the Government or Secretarial Authority vice entry level performance and conduct * he also requests a personal hearing 2. The applicant states: a. On 18 August 2004, he was discharged with an uncharacterized discharge by reason of entry level performance and conduct. He had shipped to basic training (BT) at Fort Jackson, SC, after having almost a year of inactive service in good standing with his U.S. Army Reserve (USAR), Troop Program Unit (TPU), 464th Transportation Company, Fort Belvoir, VA. b. Not long after he arrived at his BT unit, A Company, 3rd Training Battalion (BN), 323rd Infantry Regiment, his chain of command received word of a pending criminal charge that had followed him to BT (emphasis added). They immediately pulled him out of training, placed him on permanent daytime charge of quarters (CQ) duty, and confined him to the company storage closet where they had placed a bed for him. They separated him from his fellow Soldiers and he remained there until he was transferred to the outprocessing unit to be discharged. c. He believes his discharge was improper because his BT command committed capricious actions against him by illegally confining him to the storage closet as a form of nonjudicial punishment (NJP) and he was denied the right to consult with a lawyer until after the separation authority, Lieutenant Colonel (LTC) JFC, approved his discharge on 30 July 2004. d. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, states Soldiers can be discharged for inability, lack of reasonable effort, failure to adapt to the military environment and minor disciplinary infractions. Paragraph 1-16 states "Trainees: Soldiers undergoing initial-entry training or other training will be recycled at least once before separation action is initiated." He was not recycled or given a reasonable opportunity to remedy the issues that were noted on the DA Form 4856 (Developmental Counseling Form), dated 19 July 2004, that was signed by his then drill sergeant (DS) Sergeant First Class (SFC) BPH. e. AR 635-200, paragraph 11-4 (Counseling and Rehabilitative Requirements) states, "Counseling and Rehabilitation efforts are essential when entry-level performance and conduct are the reason for separation, and a Soldier should not be separated when this is the sole reason for separation, unless efforts have failed at rehabilitation. Before initiating separation action, commanders will ensure the soldier receives adequate counseling and rehabilitation." f. AR 635-200, paragraph 3-8 (Limits on Characterization) states, "The following will not be considered in determining the characterization of service: pre-service activities except in proceedings for fraudulent entry, when misrepresentations, including omissions of facts which, if known would have prevented, postponed or otherwise affected the Soldier's eligibility for enlistment." g. He believes his discharge was illegal and improper because of his BT command's capricious actions taken against him which included: * his being arrested and questioned by the U.S. Criminal Investigation Division Command (CID) and the Fort Jackson military police (MP) * assignment as permanent daytime CQ * confinement to the company orderly room * the refusal to grant him sufficient time to resolve and remedy a pre-service criminal allegation * violation of counseling and rehabilitation requirements of AR 635-200 * his not having been found guilty of anything stemming from the criminal allegation that has been taken care of since his discharge h. He also believes his discharge was inequitable because he had not had any prior military disciplinary issues during his year of inactive service. He believes the separation authority used a pre-service criminal allegation as the only basis for his discharge and did not consider an otherwise satisfactory start to his military career. He did not have the chance to participate in any training and had not been in BT long enough to warrant a separation by reason of entry level performance and conduct. 3. The applicant provides: * his DD Form 214 * page one of DA Form 4856 * a memorandum * orders * a statement of support 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 USAR on 23 June 2003 for a period of 8 years and for training in military occupational specialty (MOS) 44B (Metal Worker), a $3,000 enlistment bonus, and assignment to the 464th Transportation Company, TPU, Fort Belvoir. 3. On 14 June 2004, he entered initial active duty for training (ADT) as a member of the USAR and was assigned for BT to A Company, 3rd BN, 323rd Infantry, Fort Jackson. 4. His record is void of the complete facts and circumstances surrounding his discharge processing. However, the applicant provides: a. Page one of DA Form 4856, dated 19 July 2004, wherein it stated the purpose of the counseling was the applicant exhibited characteristics and values not becoming of a Soldier. The name of the Soldier conducting the counseling was not shown. The key points discussed were: (1) Soldier self-admitted to passing checks with insufficient funds in an amount in excess of $5,000. The MPs and CID interviewed the applicant about the faulty checks and he was placed on permanent daytime CQ. Soldier had not participated in the RED phase [of training]. (2) Soldier had continued unsatisfactory behavior by pursuing inappropriate relationships with female Soldiers in training. (3) Soldier had not displayed the seven Army Core Values. He displayed an untrustworthy attitude by lying to cadre and other Soldiers. Soldier had continually been involved in situations concerning other Soldiers in training with discipline or motivational problems. b. A memorandum, dated 30 July 2004, subject: Proposed Separation Action Under the Provisions of AR 635-200, Chapter 11, Entry Level Status Performance and Conduct, wherein the separation authority, LTC JFC, stated the recommendation for the separation of [The Applicant], had been reviewed and was approved with the issuance of an uncharacterized discharge. c. Orders 223-1320, dated 10 August 2004, issued by the U.S. Army Training Center and Fort Jackson, discharging the applicant from the USAR effective 18 August 2004. 5. On 18 August 2004, he was discharged from active duty and the USAR. He completed 2 months and 5 days (or 65 days) of active service and had 11 months and 21 days of prior inactive service. His DD Form 214 shows the following entries in: * item 24 (Character of Service) - Uncharacterized * item 25 (Separation Authority) - AR 635-200, Chapter 11 * item 26 (Separation Code) - JGA * item 28 (Narrative Reason for Separation) - Entry Level Performance and Conduct 6. His record is void of any evidence and he did not provide any evidence that shows he was illegally confined to a storage closet as a form of NJP or denied the right to consult with legal counsel. 7. On 6 June 2005, the Army Discharge Review Board denied the applicant's request to change the reason and characterization of his discharge and determined his discharge was both proper and equitable. 8. The applicant provides a statement of support, dated 8 June 2015, wherein his employer stated he had been an employee since 2 April 2015. He displayed great workmanship, was punctual, an incredible team player, very reliable, and a tremendous asset to the team. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. Chapter 11 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status. 2. AR 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code of JGA is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct and "Entry Level Performance and Conduct" is the corresponding narrative reason for separation. 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. On 14 June 2004, the applicant entered initial ADT as a member of the USAR. Although the complete facts and circumstances surrounding the applicant's discharge processing are not known, he provides evidence that shows his separation was initiated due to his passing bad checks, pursuing inappropriate relationships with other trainees, and lying to cadre/other Soldiers. 3. The counseling he provided shows that after he was interviewed by the MPs and CID he was appropriately pulled from training and placed on permanent CQ, presumably pending the outcome of the ongoing criminal investigations. He subsequently admitted to passing over $5,000 in bad checks and it is evident he would not have eligible to enter ADT if the Army or USAR had been aware of this criminal conduct. 4. Notwithstanding the applicant's contention that his discharge was improper, in the absence of evidence to the contrary it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. There is no evidence and he did not submit any evidence that shows he was confined to a storage closet as a form of NJP or denied the right to consult with legal counsel. 5. As he was discharged on 18 August 2004 under the provisions of AR 635-200, chapter 11, prior to completing 180 days of active service, he was still in an entry-level status and correctly received an uncharacterized character of service. The corresponding narrative reason for Soldiers discharged under AR 635-200, chapter 11, is "Entry Level Performance and Conduct" which is properly shown on his DD Form 214. 6. An entry-level status discharge is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011344 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011344 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2