ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 February 2019 DOCKET NUMBER: AR20160011846 APPLICANT REQUESTS: requests his uncharacterized discharge be changed to honorable or under honorable conditions and his narrative reason for separation be changed to medical separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision * VA Award Amount Decision FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he researched the separation codes shown on his DD Form 214 and the codes listed, "JGA/JET," refers to a trainee status. He claims he was in the service for a total of 9 months which is well beyond the trainee status. He claims he was discharge based on his injured knee. He is having financial difficulties and has sought assistance from local non-profit agencies. However, once they review his discharge, he is turned away. In addition, nowhere on his discharge does it say anything about being a "medical discharge." Therefore, he is lumped together with trainees who did something wrong to get discharged early. He served his country for as long as he was allowed to with an injury that occurred during his active duty service. He is rated by the Department of Veterans Affairs (VA) and states his DD Form 214 should be corrected to reflect his true status as an honorable discharge under medical conditions. 3. He enlisted in the U.S. Army Reserve Delayed Entry Program on 17 May 1982. He enlisted for 6 years in the rank of private first class (PFC)/pay grade E-3. His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows in Section B (Agreements) that he understood within 365 days he would be ordered to active duty as a Reservist for 2 years unless he enlisted in the Regular Army for not less than 2 years. His enlistment in the delayed entry program was in a non-pay status. He acknowledged his period in the delayed entry program was creditable for pay purposes upon enlistment onto active duty and he further acknowledged that this time is not counted toward fulfillment of his military service obligation or commitment (period of active federal service). He signed his DD Form 4. 4. On 29 September 1982, he was discharged from the delayed entry program and enlisted in the Regular Army for a period of 2 years. He again signed his DD Form 4 attesting to this fact in Section 17 (For Enlistment in a Regular Component from a Delayed Entry/Enlistment Program). He had served in the delayed entry program in an inactive status for 4 months and 12 days. 5. Within the applicant’s personnel record are multiple counseling statements attesting to the following facts: * on 19 January 1983, he failed to report for the company commander’s inspection, he had a negative attitude, and lacked initiative to meet his responsibilities as a Soldier * on 20 January 1983, he failed to go to his appointed place of duty (school) and admitted to that fact, lacked motivation to attend school, required constant supervision, counseled his conduct could lead to punishment under the Uniform Code of Military Justice (UCMJ) and elimination from the U.S. Army * on 21 January 1983, he failed to go to his appointed place of duty (school) and failure to go to his company commander’s inspection; he had a physical profile that precluded him from marching over one-half mile; and he was advised to pay attention to the training schedule * on 26 January 1983, he was counseled concerning his poor attentiveness, conduct, lack of military bearing, lack of motivation, poor academic performance, lack of self-discipline with an overall assessment of poor performance; he was not evaluated on physical fitness presumably due to his temporary physical profile 6. On 16 February 1983, he was notified by his company commander that he was initiating action to separate him under the provision of the Trainee Discharge Program in accordance with Chapter 11, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time. The specific reasons for initiating separation action were his lack of motivation, lack of interest, poor aptitude and lack of self- discipline. He was further informed he would receive an uncharacterized discharge. 7. During the initial notification process he was advised he had the right to consult with counsel or a civilian counsel at no cost to the government. He was further advised – * he could submit statements on his behalf * he may obtain copies of all documents related to the separation action * he may waiver his rights in writing and withdraw the waiver at any point prior to the date the separation authority orders, directs, or approves his separation * he may be required to undergo a complete physical examination * he was told since he would not comply with the terms of his enlistment contract benefits associated with an honorable (2 year period of active duty service) enlistment would not be available to him through both State and the Federal governments VA program 8. On 16 February 1983, he acknowledged in writing the separation notification and that due to non-completion of the requisite active duty time, VA and other benefits normally associated with the completion of honorable service would not be available to him. He indicated in writing that: * he did not desire to consult with counsel * he did not desire to submit or make a statement on his behalf * he did not desire to have a separation medical examination 9. Concurrent with the company commander’s notification of separation and the applicant’s declination of defense counsel, the company commander initiated separation action recommending the applicant not be recycled to another military occupational specialty class due to his demonstrated poor comprehension and lack of aptitude. The commander stated the applicant was extremely slow and showed to interest in self- improvement. 10. The separation authority approved the commander’s recommendation to separate him directing issuance of an uncharacterized discharge under the provisions of Army Regulation 635-200, chapter 11. 11. On 25 February 1983, Orders 039-030 was issued by Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, SC directed the applicant's discharge effective 1 March 1983 in the rank and grade of PFC/pay grade E-3 12. On 1 March 1983, he was discharged accordingly. He was issued a DD Form 214 showing: * Block 12a (Record of Service – Date Entered Active Duty) – 29 September 1982 * Block 12b (Separation Date this Period) – 1 March 1983 * Block 12c (Net Active Service this Period) – 5 months and 3 days * Block 12e (Total Prior Inactive Service) – 4 months and 12 days * Block 24 (Characterization of Service) – Uncharacterized * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 11-3a * Block 26 (Separation Code) – JGA/JET * Block 28 (Narrative Reason for Separation) – Entry level performance and conduct 13. The applicant provided the following evidence: a. On 13 November 2015, he received written notification from the VA concerning his disability ratings: * surgical scars – 0 percent * left knee meniscal tear, knee joint osteoarthritis, patellofemoral pain syndrome – 10 percent b. On 26 November 2015, he received a letter showing his award amount and payment history from July 2012 forward. 14. In the processing of this case, the Army Review Boards Agency Psychiatrist provided an advisory opinion. After reviewing the available evidence in the VA Joint Legacy Viewer and his military personnel record, she opined he did not have a mitigating medical or behavioral health condition for the offenses that led to his uncharacterized separation from service. Of note, his official service treatment (medical) records were not available for review. It is presumed his medical records are on loan to the VA. 15. In summary, the applicant served for 4 months and 12 days in the inactive service (delayed entry program) and 5 months and 3 days on active duty service (Regular Army). If one combines both his inactive and active service, he was in the service for 9 months. However, he was discharged from active service prior to completing 180 days of active federal service and he also did not complete his military occupational schooling; therefore, by regulation a Soldier normally will receive an uncharacterized discharge. The separation codes shown on his DD Form 214 are for a person separated in a trainee status because one did not complete both phases of training: basic training and advanced individual training. Finally, there is no evidence his injury to his knee required a permanent profile and entry into the disability evaluation system. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed medical concerns were considered, and did not warrant referral to a medical evaluation board. The discharge characterization was IAW regulatory guidance as the applicant was in an entry level status. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XL :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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): Not applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 3. Army Regulation 40-501 (Standard of Medical Fitness) provides medical retention standards and is used by medical evaluation boards to determine which medical conditions will be referred to a physical evaluation board (PEB). Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. At the time Chapter 11 provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training as evidenced by inability, lack of reasonable effort, failure to adapt to the military environment and minor disciplinary infractions, and who failed to respond to documented counseling. Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty service before the date of the initiation of separation action). An uncharacterized description of service was required for separation under this chapter. 5. Army Regulation 635-5 (Personnel Separation – Separation Documents) in effect at the time, stated the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. It states to use the following documents when preparing a DD Form 214: * DA Form 2-1 (Personnel Qualification Record) * separation approval authority documentation, if applicable * separation order * any other document authorized for filing in the official military personnel file 6. Army Regulation 635-5-1 (Separation Program Designators (SPD)), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for separation of members from the active military service and the separation program designators to be used for these stated reasons. For the SPD Codes JGA/JET, the regulatory authority was Army Regulation 635-200, paragraph 11-3a and the corresponding narrative reason for separation was entry level performance and conduct or entry level status performance. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20160011846 2 1