IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150006822 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: 23 August 2016 DOCKET NUMBER: AR20150006822 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: 23 August 2016 DOCKET NUMBER: AR20150006822 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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was separated by reason of service-connected disability with an honorable character of service. 2. The applicant states he received a service-connected disability rating for the ailment that he was discharged for, and thus he should have received an honorable discharge. He was discharged as mentally unfit. The negative basic training environment caused his negative childhood experiences to resurface, which resulted in his inability to function within that environment. The uncharacterized discharge is affecting his ability to obtain Federal and State benefits. 3. The applicant provides a VA Form 21-4138 (Statement in Support of Claim) dated 6 March 2015 and a service verification letter from the Department of Veterans Affairs (VA) 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 Army National Guard (ARNG) on 13 January 1997. Prior to his enlistment, he participated in a medical assessment and examination, which found no significant medical issues. 3. On 4 January 1998, he entered active duty for the purpose of completing his initial active duty for training (IADT); however, he did not complete training. 4. His record contains numerous DA Forms 4856 (General Counseling Form), dated between 4 February and 7 March 1998, which show he was counseled by his chain of command for his inability to pass the Army Physical Fitness Test (APFT). He was directed to participate in the unit's remedial program until he passed the APFT. 5. On 13 April 1998, he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from on or about 20 March to 13 April 1998. 6. On 14 April 1998, he underwent a mental status evaluation, 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 was diagnosed with adjustment difficulties and mood problems related to the military training environment. d. Further rehabilitative efforts would likely not be effective. 7. On 16 April 1998, the applicant was notified of his possible separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, for unsatisfactory performance while in an entry level status, and his failure to adapt motivationally. He was scheduled to meet with the chaplain that afternoon. 8. On that same date, after meeting with the chaplain, the applicant was recommended for discharge under the provisions of Army Regulation 635-200, chapter 11. The chaplain cited the applicant's current mental state and emotional instability as the specific reason for his recommendation. 9. On 24 April 1998, the applicant's commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 11, paragraph 11-2a, by reason of his lack of motivation, adjustment difficulties, anxiety, immature coping skills, and situational stressors. The applicant was further advised that if the request for separation was approved, he would receive an entry level separation and his service would be "uncharacterized." 10. On this same date, the applicant acknowledged receipt of the separation notification memorandum. He waived his right to consult with counsel and elected not to make any statements in his own behalf. He acknowledged he understood that he would be ineligible to apply for enlistment in the Army for a period of 2 years after the date of his discharge. 11. On 29 April 1998, the separation authority reviewed the proposed separation action, waived further rehabilitative efforts, and approved an entry-level separation with uncharacterized service, in accordance with Army Regulation 635-200, chapter 11. 12. On 30 April 1998, the applicant was discharged. The DD Form 214 he was issued shows he completed 3 months and 2 days of net active service. It further shows in: * Item 23 (Type of Separation) – Release from Active Duty Training * 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 13. The applicant provides a service verification letter from the VA, dated 16 February 2015, which shows the VA considered his service between 4 January and 30 April 1998 to have been honorable. It also reflects he was awarded a 30 percent service-connected disability rating; however, the specific condition for the rating is not shown. REFERENCES: 1. 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. (1) 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. (2) 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. b. 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. 2. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of any VA rating does not establish error or injustice by the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge that disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The applicant contends his DD Form 214 should be corrected to show he was honorably discharged by reason of a service-connected disability. 2. The applicant entered active duty on 4 January 1998 and was discharged on 30 April 1998. His record shows he entered IADT, but he did not complete basic training. During basic training, he was counseled several times for failure to pass the APFT and his inability to adapt to the military environment. He also received non-judicial punishment for being AWOL. Accordingly, his chain of command initiated separation proceedings against him. 3. The applicant underwent a mental status evaluation on 14 April 1998, in preparation for his administrative separation. His evaluation shows he was mentally responsible, possessed the mental capacity to understand and participate in separation proceedings, and met retention standards. 4. Following his discharge, the applicant was determined to be 30 percent disabled, service-connected, by the VA. The VA characterized his service as honorable; however, the VA's characterization of his service as honorable is only applicable for VA purposes and does not equate to an error on the part of the Army. 5. The applicant did not complete 180 days of continuous active service prior to being discharged. There were no procedural errors which would have jeopardized his rights and all requirements of law and regulation were met. Therefore, the entry-level status designation was appropriate in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006822 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006822 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2