IN THE CASE OF: BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016297 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: 6 April 2017 DOCKET NUMBER: AR20150016297 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: 6 April 2017 DOCKET NUMBER: AR20150016297 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) as follows: * correction of his rank/grade from private (PVT)/E-1 to private first class (PFC)/E-3 * adding the Expert Marksmanship Qualification Badge with Rifle Bar * upgrading his discharge to honorable and correction of his separation code 2. The applicant states: * he was a documented E-3 when he left for Fort Benning but due to a change in recruiters, the paperwork was not submitted properly * he qualified expert with the M-16 rifle before separation; he never wanted to leave the Army * he suffered a back injury during training and it was not being treated properly by the medical staff; they brushed it aside * he was highly motivated and could not wait to go to airborne school; but, after his injury, he was put on duty repeatedly as a charge of quarters (CQ) * this CQ duty caused him to sink into deeper depression and this combined with the back pain caused him to request a discharge * he is older now but still wants to reenter the military; however, he was prevented from entering because of his back injury * he grew up in a military family and he feels this leaves a dark stain on his records * he feels the entire situation could have been handled differently via recycling/retraining * he is not asking for medical benefits; he wants his rank and marksmanship badge corrected, an upgrade to his discharge and a change to his separation code 3. The applicant provides no additional evidence. 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 under the Delayed Entry Program (DEP) in the rank/grade of PVT/E-1 on 19 August 1999. His DD Form 1966/1 (Record of Military Processing) shows he was processed for entry into the Regular Army as an E-1. 3. He was discharged from the DEP on 27 June 2000 and enlisted in the Regular Army for a 3-year term, also in the rank of PVT/E-1, on 28 June 2000. He was assigned to 2nd Battalion 19th Infantry, Fort Benning, GA for training. 4. The complete facts and circumstances surrounding his discharge are not available for review. However, his records contain: a. Orders 245-2203, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, on 1 September 2000, ordering him to report to the Transition Point for separation processing effective 6 September 2000, in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The orders listed his rank as PVT. b. DD Form 214 showing he was discharged on 6 September 2000 under the provisions of chapter 11 of AR 635-200 due to entry level performance and conduct with an uncharacterized discharge. This form shows he completed 2 months and 9 days of active service. It also shows in: * item 4a (Grade, Rate or Rank) and 4b (Pay Grade), PV1 and E-1 * item 12h (Effective Date of Pay Grade), 28 June 2000 * item 13 (Decorations Medals, Badges Citations and Campaign Ribbons Awarded or Authorized), None * item 25 (Separation Authority), AR 635-200, chapter 11 * item 26 (Separation Code), JGA 6. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 7. His service records do not contain a DA Form 4187 (Personnel Actions), orders, or any documents promoting him to E-2 or E-3. Likewise, his service records do not contain any documents in the form of unit/special/permanent orders, memoranda, disposition forms, rosters, or other documentation confirming his qualification in any weapon systems. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 of this regulation, in effect at the time, governed the entry level status discharge. It provided for the separation of Soldiers who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling. The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on the job or service school training, and must not have completed no more than 180 days of active duty on their current enlistment at the time his/her separation action is initiated. The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. The regulation required an uncharacterized description of service for separation under this chapter. b. 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. c. 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. d. Paragraph 3-9 that separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status. An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army. 2. AR 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents. It also establishes standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. a. Items 4a and 4b, enter the active duty grade or rank and pay grade at time of separation from the Enlisted Record Brief or similar document. b. Item 12(h), enter effective date of promotion to the current pay grade, from the most recent promotion order (or reduction instrument). c. Item 13, lists awards and decorations for all periods of service in the priority sequence. Each entry will be verified by the Soldier’s records. d. Item 25, enter the correct entry from regulatory or directives authorizing the separation. e. Item 26, enter the correct separation code; obtain the correct entry in AR 635-5-1 (Separation Program Designator) which provides the corresponding separation program designator code for the regulatory authority and reason for separation. 3. AR 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation codes to be used for these stated reasons. The regulation in effect at the time shows that the Separation Code "JGA" specifies the narrative reason for discharge as "Entry Level Performance and Conduct” and that the authority for discharge under this separation program designator is AR 635-200, chapter 11. 4. AR 600-8-22 (Military Awards) sets forth requirements for award of basic marksmanship qualification badges. The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman – in which an individual has qualified in a prescribed record course. An appropriate bar is furnished to denote each weapon with which the individual has qualified. For example, Expert Marksmanship Qualification Badge with Rifle Bar or Sharpshooter Marksmanship Qualification Badge with Pistol Bar or Marksman Marksmanship Qualification Badge with Automatic Rifle Bar. Award of marksmanship qualification badges is not permanent. An award for a previous marksmanship qualification is revoked automatically whenever an individual, upon completion of firing a record course for which the previous award was made, has not attained the same qualification. DISCUSSION: 1. With respect to the character of service and separation code: a. The applicant's record is void of the complete facts and circumstances that led to his discharge. However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 6 September 2000 under the provisions of chapter 11 of AR 635-200 due to entry level performance and conduct. b. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. He provided no evidence that would indicate the contrary. c. During the first 180 days of continuous active military service, a Soldier's service is under review. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge. An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army. d. The entry-level separation is given regardless of the reason for separation. An uncharacterized discharge is neither positive nor negative; it is not "derogatory." An uncharacterized character of service is not meant to be a negative reflection of a Soldier's military service. It merely means the Soldier has not been in the Army long enough for his/her character of service to be rated as honorable or otherwise. There is no regulatory basis for granting the applicant's request to change his character of service to either honorable or general. e. He was discharged under the provisions of chapter 11 of AR 636-200 for entry level performance and conduct. Absent his substandard performance and/or conduct or his inability to perform to standards, there would have been no fundamental reason to process him for separation. The underlying reason for his separation was his performance and conduct and the only narrative reason authorized here is "Entry Level Performance and Conduct." The corresponding Separation Code is "JGA" which is correctly listed on his DD Form 214. 2. With respect to his rank/grade, the evidence shows he enlisted in the rank/grade of PVT/E-1. His service records do not contain a DA Form 4187 (Personnel Actions), orders, or any documents promoting him to E-2 or E-3. In the absence of such an order for promotion, there is no reason to change his rank/grade. 3. With respect to his marksmanship qualification, while it is reasonable to presume every Soldier qualifies with their assigned weapon system during initial entry training, his service records do not contain any documents in the form of unit/special/permanent orders, memoranda, disposition forms, rosters, or other documentation confirming his qualification in any weapon systems and/or the degree of such qualification. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016297 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016297 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2