BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016945 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 BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016945 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. BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016945 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, that his uncharacterized discharge based on entry level performance and conduct be changed to an honorable discharge with a more appropriate explanation and/or narrative reason for separation. 2. The applicant states he intended to serve the entire term of his active duty service obligation. He states, "[He] and [his] 'buddy' provided statements to the situation (matter of record) on separation." He states the Department of Veterans Affairs (VA) has recognized his military service as "honorable" and a change to the characterization of his service to "honorable" will help him with his efforts to obtain veterans' benefits. 3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 215 (Correction to DD Form 214), and four VA rating decision letters. 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 on 26 April 1999 for a period of 8 years. He further enlisted in the Regular Army on 4 August 1999 for a period of 4 years. He was assigned to Company E, Defense Language Institute English Language Center (DLIELC), Lackland Air Force Base, TX. 3. Ten DA Forms 4856 (General Counseling Forms) show the applicant was counseled by noncommissioned officers and his commanding officer on various dates (in 1999) on the following topics/issues: * 10 August 1999, "The Buddy Team System" * 10 August 1999, assignment of a "Drill Sergeant Mentor" to help him learn to speak English as a second language * 11 August 1999, standards of conduct and performance (by his commander) * 12 August 1999, personal and professional standards by his "Drill Sergeant Mentor" * 22 September 1999, failing to be at his appointed place of duty * 28 September 1999, unsatisfactory physical fitness (sit ups) and substandard academic progress * 26 October 1999, a lack of motivation to maintain the standards of a Soldier * 28 October 1999, unsatisfactory physical fitness (sit ups) and substandard academic progress * 28 October 1999, poor academic performance based on expected level of proficiency for the amount of time he had attended the DLIELC course * 28 November 1999, unsatisfactory physical fitness (sit ups) and substandard academic progress * 4 December 1999, inability to adapt to the military 4. On 22 November 1999, the applicant was notified by his supervisor that he was being placed on academic probation based on three consecutive book quiz failures and insufficient progress for certification as English language qualified. 5. On 6 December 1999, the company commander notified the applicant that separation action was being initiated to separate him under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (Entry Level Separation), paragraph 11-3, based on failure to adapt socially and emotionally to military life. The commander stated he was recommending the applicant receive an uncharacterized entry level separation. The applicant was advised of his rights and of the separation procedures. 6. Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him. a. He requested representation by military counsel. b. He acknowledged that he understood that he would receive an entry level discharge. c. He indicated that he would submit statements in his own behalf; however, his separation packet does not contain any statement(s). 7. The separation authority waived further rehabilitation and training of the applicant, approved the discharge UP AR 635-200, chapter 11, and directed the applicant be issued an entry level separation – uncharacterized. 8. The applicant's DD Form 214, as corrected by a DD Form 215 (issued on 22 November 2014), shows he entered active duty on 4 August 1999 and he was discharged on 30 December 1999 UP AR 635-200, chapter 11. At the time he had completed 4 months and 27 days of net active service. It 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" 9. The Army Discharge Review Board (ADRB) considered the applicant's request for review of his discharge. On 8 September 2008, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable. 10. In support of his application the applicant provides four VA Regional Office, St. Petersburg, FL, letters, dated 12 February 2013, 26 December 2013, 15 May 2014, and 16 May 2014, all from the Veterans Service Center Manager and addressed to the applicant that, in pertinent part, show: * "This is to certify that the records of the above-named honorably discharged veteran show that the veteran has a service connected disability evaluated by the [VA] to a degree of ten percent or more" * Military Information: Your character(s) of discharge and service date(s) include: "Army, Honorable, 4 August 1999 – 30 December 1999" REFERENCES: 1. 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 Regular Army, 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: (1) 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. Only the honorable characterization may be awarded to 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. (2) 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. Entry-level status terminates 180 days after the Soldier's entry on active duty. 2. 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 in: * item 24, the authorized entries are Honorable, Under Honorable Conditions (General), Under Other Than Honorable Conditions, Bad Conduct, Dishonorable, and Uncharacterized * item 28, enter the narrative reason for separation as shown in AR 635-5-1 (Separation Program Designator (SPD) Codes) based on the regulatory or other authority 3. AR 635-5-1 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 identifies the SPD code of "JGA" as the appropriate code to assign enlisted Soldiers involuntarily separated UP AR 635-200, chapter 11, based entry level performance and conduct. DISCUSSION: 1. The applicant contends, in effect, that his uncharacterized discharge based on entry level performance and conduct should be changed to an honorable discharge with an appropriate narrative reason for separation because the VA has recognized the period of his military service as honorable. 2. 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). 3. The evidence of record shows the applicant entered active duty on 4 August 1999, he was discharged on 30 December 1999, and he completed 4 months and 27 days (i.e. 147 days) of net active service during this period. 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. 4. The applicant's discharge UP AR 635-200, chapter 11, was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights. Considering the facts of this case, the narrative reason for separation (i.e., entry level performance and conduct) and character of service (i.e., uncharacterized) were appropriate, correct, and equitable. 5. The evidence of record shows the applicant was counseled on several occasions during the period of service under review. The counseling pertained to his failing to be at his appointed place of duty, lack of motivation to maintain the standards of a Soldier, poor academic performance, unsatisfactory physical fitness and substandard academic progress (three times), and inability to adapt to military service. Based on the evidence of record, the applicant's service during the very short period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit an honorable discharge. 6. The VA may have determined the applicant's uncharacterized service is honorable for VA purposes; however, this is not sufficient to change his DD Form 214 to show honorable service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016945 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016945 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2