ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

                   BOARD DATE: 25 February 2019   

                   DOCKET NUMBER:  AR20160013783


APPLICANT REQUESTS:  An upgrade of her uncharacterized discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 she needs clarity in regards to her current status.  She did what she was directed and taught to do.  

3.  A review of the applicant’s service records show the following on:

* 10 August 1989 – enlisted in the Regular Army and assigned to E Company, 2nd Battalion, 26th Infantry, 3rd Basic Training Brigade, Fort Dix, NJ for initial entry training
* 1 November 1989 – DA Form 4856 (General Counseling Form) was completed by her immediate commander recommending an entry level separation under the provisions of chapter 11, of AR 635-200, citing her being given 3 1/2 additional weeks to pass the Army Physical Fitness Test (APFT) and continually failing after 5 attempts, she concurred.  He advised the applicant of her rights and informed her the final decision in her case rested with the separation authority, and if approved, she would receive an uncharacterized, entry level separation

4.  The applicant acknowledged receipt of the notification of her proposed uncharacterized entry level separation.  She acknowledged she had been advised by her commander of the basis for the contemplated separation and its effects, the rights available to her and the effect of a waiver of her rights.  She made the following choices: 

* she waived her rights to consult with counsel
* she understood she would receive an entry level separation
* she understood her character of service would be uncharacterized
* she elected not to submit statements on her behalf
* she indicated she did not desire a separation physical

5.  On 3 November 1989, the separation authority approved the applicant's discharge from the Army in accordance with chapter 11-3a, of AR 635-200, and ordered the applicant discharged and issued an entry level discharge - uncharacterized.

6.  On 13 November 1989, the applicant was discharged.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 3 months and 4 days of net active service.  Her DD Form 214 also shows in:

* item 24 (Character of Service), "Uncharacterized"
* item 25, AR 635-200, chapter 11-3a
* item 28 (Narrative Reason for Separation), "Entry Level Status Performance and Conduct"

7.  Army Regulation 635-200 (Personnel Separations), set forth the basic authority for the separation of enlisted personnel.  Chapter 11 provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.

8.  In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The Board agreed the appropriate discharge characterization resulted during the applicant’s entry level status separation.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 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:  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 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.  AR 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applied to individuals who had demonstrated they were not qualified for retention because they:

* could not adapt socially or emotionally to military life
* lacked the aptitude, ability, motivation, or self-discipline for military service
* demonstrated characteristics not compatible with satisfactory continued service

   a.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  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 before the date of the initiation of separation action).  An uncharacterized description of service was required for separation under this chapter.

   b.  Chapter 3 describes the different types of characterization of service.  It states an uncharacterized separation is an entry-level separation.  A separation is described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable 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.

   c.  Paragraph 3-7(a) states 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.

   d.  Paragraph 3-7(b) states 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
   
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.

ABCMR Record of Proceedings (cont)	AR20160013783
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