AR20140000095

IN THE CASE OF:

BOARD DATE: 21 August 2014

DOCKET NUMBER: AR20140000095

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 an upgrade of her general discharge to an honorable discharge.

2. The applicant states she performed all of her assigned duties without complaint. She was never in any trouble, reprimanded, “written-up,” or charged with misconduct during her military service. She does not know why she did not receive an honorable discharge and she wasn’t aware of it until she recently applied for employment and the character of her service came into question.

3. The applicant provides no documentary evidence in support of her request.

CONSIDERATION OF EVIDENCE:

1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3years 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 20 January 1989 for a period of 8 years for training in military occupational specialty (MOS) 91P (X-Ray Specialist). A DA Form 5345-R (Statement of Understanding Selected Reserve Educational Assistance Program) shows the applicant acknowledged qualifying eligibility criteria that show, in pertinent part, “Non-prior service members must become a secondary school graduate or equivalent before completion of Initial Active Duty Training (IADT) or equivalent.” The applicant and service representative placed their signatures on the form on 20 January 1989.

3. The applicant was ordered to IADT on 7 September 1989.

a. A DA Form 4856 (General Counseling Form), dated 20 February 1990, shows the applicant was counseled by a commissioned officer who informed her that she was not enrolled in training for MOS 91P due to not having a high school diploma or General Education Development (GED) certificate. She was also informed that she was scheduled to take the GED examination on 21 February 1990 to qualify for reenrollment in training for MOS 91P. She was advised that if she failed the GED, she would be reclassified into a different MOS. If that was not possible, she would be separated from the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The officer and applicant placed their signatures on the document.

b. An Official Report of Test Results, Tests of GED, dated 12 March 1990, shows the applicant was administered the five subject matter tests on
21-22 February 1990 and she attained a passing score for her GED certificate.

c. On 17 April 1990, the applicant was informed that she was being considered for relief from Class X-5 of the 313-91P1O, X-Ray Specialist Course, due to academic reasons. The applicant acknowledged receipt of the notification and did not request an informal hearing with the Course Director or his designee.

d. A memorandum, dated 18 April 1990, subject; Relief of Student from Course of Instruction, shows the Course Director recommended the applicant be relieved from the X-Ray Specialist course (313-91P1O, X-5, Fiscal Year 1990) and recycled for additional MOS training due to academic deficiency. The reason cited was the applicant had failed five crucial examinations. On 18 April 1990, the Chief, Medicine and Surgery Division, approved the action.

e. A DA Form 2496 (Disposition Form), dated 26 April 1990, subject: Discharge under the Provisions of AR 635-200, shows the applicant was counseled and informed she was academically relieved from MOS training, the unit had no vacant training seat, and she was being recommended for discharge. The applicant indicated that, “Sergeant Major S—— has explained everything to me and I understand” and she placed her signature on the document.

f. A DA Form 4856, dated 2 May 1990, shows the applicant was counseled by her commander who informed her that she was recommending the applicant be separated from the U.S. Army under the provisions of AR 635-200, chapter 13 (Separation for Unsatisfactory Performance) because she was unable to complete MOS training. The officer and applicant each placed their signatures on the document.

4. On 24 May 1990, the applicant’s company commander notified her that she was initiating action to separate her under the provisions of AR 635-200,
chapter 13.

a. The reason for her proposed action was the applicant was academically relieved from the MOS 91P training course and there were no retraining seats available to her. She informed the applicant that, in accordance with AR 612-201 (Initial Entry/Prior Service Trainee Support), she must be processed for separation.

b. The commander also informed the applicant that she was recommending the applicant receive a General Discharge Certificate.

c. The applicant was advised of her rights and the separation procedures involved.

5. On 24 May 1990, the applicant acknowledged the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights.

a. She acknowledged that she had been afforded the opportunity to consult with appointed counsel for consultation, military counsel of her own choice if he/she was reasonably available, or civilian counsel at her own expense; however, she declined the opportunity.

b. She indicated that she would not submit statements in her own behalf.

c. The applicant indicated that she understood that she may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to her.

d. She was informed that, if she received a discharge certificate/character of service which was less than honorable, she could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrade of her discharge. However, an act of consideration by either board did not imply her discharge would be upgraded.

e. The applicant placed her signature on the document.

6. The company commander recommended approval of the applicant’s separation action and that she be issued a General Discharge Certificate.

7. The separation authority approved the recommendation for discharge of the applicant and directed that her service be characterized as under honorable conditions and she be issued a General Discharge Certificate.

8. The applicant’s DDForm214 (Certificate of Release or Discharge from Active Duty) shows she entered AD this period on 7 September 1989 and was released from ADT on 1 June 1990 under the provisions of AR 635-200, chapter 13, for unsatisfactory performance. Her service was characterized as under honorable conditions and she was transferred to the USAR Control Group (Annual Training) to complete her Reserve obligation. She completed 8 months and 25 days of net active service this period.

9. A review of the applicant’s military personnel records failed to reveal any evidence that the applicant applied to the ADRB for review of her discharge within its 15-year statute of limitations.

10. AR 612-201, in effect at the time, prescribes policy for processing and reporting initial entry Soldiers from time of arrival at a U.S. Army Reception Battalion to completion of advanced individual training or departure to their permanent duty station. Chapter 3 (Processing and Reporting by U.S. Army Training Centers), paragraph 3-24, shows that those personnel who fail their retraining MOS assignment will be processed for separation from the Service. Recommendation for separation will be initiated within 7 calendar days following determination that the individual will be unable to complete training. (See AR 635-200, chapter 11 [Entry Level Status Performance and Conduct Trainee Discharge Program] and chapter 13.)

11. AR 635-200, in effect at that time, sets forth the basic authority for the separation of enlisted personnel.

a. Chapter11 provides policy and guidance for the separation of personnel because of unsatisfactory performance or conduct while in an entry level status. Personnel who voluntarily enlisted in the USAR are considered to be in an entry level status if they have completed no more than 180days of continuous AD, ADT, or IADT on current enlistment by the date of separation. Service of personnel separated under the provisions of this chapter will be described as “uncharacterized.”

b. Chapter 13 provides that a Soldier may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. This reason will not be used if the Soldier is in entry level status.

c. Chapter3 (Character of Service/Description of Service) provides in:

(1) paragraph 3-7a that an honorable characterization of service may be awarded to a Soldier upon completion of his/her period of enlistment or period for which called or ordered to AD, ADT, or IADT, or where required under specific reason for separation.

(2) paragraph3-7b 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; and

(3) paragraph 3-9 that 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.

d. SectionII (Terms) of the glossary states that entry-level status for Reserve Soldiers begins upon enlistment in the USAR and, for Soldiers ordered to IADT for one continuous period, it terminates 180days after beginning training.

DISCUSSION AND CONCLUSIONS:

1. The applicant contends her general discharge should be upgraded to an honorable discharge because there were no issues regarding her personal conduct and duty performance during her military service and she does not know why she did not receive an honorable discharge.

2. Records show the applicant enlisted in the USAR on 20 January 1989. She was ordered to IADT on 7 September 1989 and advised that a high school diploma or GED was a prerequisite for her military MOS training.

a. Records also show that, more than 1 year after having enlisted in the USAR, the applicant was counseled on her disenrollment from MOS training for not having a high school diploma or GED certificate. Shortly thereafter, she obtained her GED certificate.
b. Then, in April 1990, the applicant was informed that she was being considered for relief from training in MOS 91P due to academic deficiency based on having failed five crucial examinations. The commander also advised the applicant that she was unable to complete MOS training due to the fact that a retraining seat was unavailable. Accordingly, on 24 May 1990, the applicant was notified by her commander that she was initiating action to separate her under the provisions of AR 635-200, chapter 13. At the time, the applicant had completed more than 180 of continuous AD and was not in an entry level status. As such, she was not eligible for processing under the provisions of AR 635-200, chapter 11.

3. Records show the applicant was advised of her rights and the separation procedures involved, and acknowledged she had been afforded the opportunity to consult with consulting counsel. She also acknowledged that she understood the basis for the contemplated separation action (emphasis added) and its effects, the rights available to her, and the effect of a waiver of her rights.
In addition, she indicated that she understood that she may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge (emphasis added) was issued to her. Thus, the evidence of record refutes her contention that she was not informed of the basis for her separation and characterization of service for the type of discharge she received.

4. The applicant’s discharge under the provisions of AR 635-200, chapter 13, for unsatisfactory performance was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized her rights. Considering all the facts of this case, the reason for her separation and characterization of discharge were appropriate and equitable.

5. The evidence of record shows the applicant failed to take the initiative and responsibility to complete her high school diploma or GED certificate in a timely manner. She only completed the requirement after being counseled by a commissioned officer that she would not qualify for MOS training. Then, she failed to meet the academic standards for completion of her MOS training and did not complete the period for which she was called to IADT. Thus, the applicant’s period of service that is under review cannot be characterized as honorable.

6. Therefore, in view of the foregoing, there is an insufficient basis for granting the requested relief.

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) AR20140000095

3

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

1

ABCMR Record of Proceedings (cont) AR20140000095

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

1