ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20160016414 APPLICANT REQUESTS: * upgrade of uncharacterized discharge to an honorable discharge * change reason for separation from entry level status performance and conduct to medical discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement 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 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 that he believes that his discharge should have been a medical discharge and is requesting that his discharge be upgraded to an honorable discharge. He wants to know why his reason for separation was entry level status performance and conduct; and not a medical discharge. He advised that he was told by his chain of command that his separation was going to be for medical reasons. He broke his hip during an obstacle course and was made to march two miles back to the barracks. When he arrived in the barracks sleep area, he passed out due to the pain. He woke up at Walton Army Hospital, after x-rays were taken he was put on crutches. He was told by the doctor and his drill sergeant that his military career was over and that he was going to be discharged. He was placed on convalescent leave and sent home to recover for 30 days. When he returned to the unit, his discharge paperwork was ready for processing. He was placed on a bus and sent home. The applicant is requesting a full investigation into his file and to have his discharge status changed so he can go to the Veteran Administration (VA) due to still having issues with his hip. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 12 February 1992. b. On 14 May 1992, he was notified of the proposed separation from the Army under provisions of chapter 11 (Entry Level Status Performance and Conduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). If approved, be furnished an uncharacterized discharge. c. On 14 May 1992, the applicant acknowledged the notification of the separation. He acknowledged: * if approved he will received an uncharacterized discharge * he will not be eligible to reenlisted in the U.S. Army for 2 years after discharge * he did not desire to consult with legal counsel * he did not desire to make any statements on his own behalf * he did not desire to obtain any documents provided to the separation authority * he did not want a separation physical d. His unit commander initiated separation proceeding under the provisions of chapter 11, AR 635-200. He requested a waiver for the recycle requirement due to it could create disciplinary problems and the applicant was resisting all attempts at rehabilitation. The separation was requested for failure to adapt emotionally to military life. e. On 14 May 1992, the applicant did not request to have a separation physical and the medical examination was not required. In the applicant’s records available, it shows that the Soldier was not issued a permanent physical profile. f. On 14 May 1992, the separation authority approved the separation under provisions of paragraph 11-3a, AR 635-200. g. He was discharged from active duty on 28 May 1992 with an uncharacterized characterization of service under provisions of paragraph 11-3a, AR 635-200 for entry level status performance and conduct. His DD Form 214 showed that he completed 3 months and 17 days of active service. 4. "The applicant's record is void of evidence that shows he/she applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 5. In the processing of this case, a medical advisory opinion, dated 9 May 2019, was received from the Army Review Boards Agency Medical Advisor. The advisory official found that a review of the applicant’s electronic VA medical record (JLV) indicated that the applicant is not service connected. Based on the available medical records, the applicant met retention standards in accordance with AR 40-501(Standards of Medical Fitness). Prior to separation for failure to adapt the applicant was cleared by orthopedics for full return to duty regarding his stress fracture of the right ischial ramus. Based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant’s record to Integrated Disability Evaluation System (IDES) for consideration of military medical retirement is not indicated at this time. In addition, there are no medical or behavioral conditions that would support a change in the character of the applicant’s discharge. 6. The applicant was sent the ex parte request dated 24 May 2019, but he did not respond. 7. By regulation 635-200 (Personnel Separations – Enlisted Personnel) applies to members who; (1) were voluntarily enlisted in the RA, Army National Guard, U.S. Army Reserve. (2) Are in entry level status and before the date of the initiation of separation action have completed no more than 180 days of continuous active duty or individual active duty for training or no more than 90 days of phase II under a split or alternate training option. (3) Have demonstrated that they are not qualified for retention. The following conditions are illustrations of conduct that does not quality for retention; (a) cannot or will not adapt socially or emotionally to military life. (b) Cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline. (c) Have demonstrated character and behavior characteristics not compatible with satisfactory continued service. (d) Have failed to meet body fat standards after application of the procedures specified in AR 600-9. (4) Have failed to respond to counselling. 8. By regulation 40-501 (Standards of Medical Fitness) provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found the relief was / was not warranted. Based upon the medical advisory finding that referring the applicant’s record to the IDES system was not warranted and the applicant failing to provide a rebuttal to that finding that Board concluded that there was insufficient evidence to make a change to the narrative reason for separation. Additionally, the Board found that based upon the separation of the applicant being initiated within the first 180 days of active federal service, the characterization of service currently depicted on his DD Form 214 (UNCHARACTERIZED) is the appropriate characterization of service and that no error or injustice was present which would warrant making a change to that characterization. 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. 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 (AR) 635-200 (Personnel Separation – Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 11-3a states applies to members who; (1) were voluntarily enlisted in the RA, Army National Guard, U.S. Army Reserve. (2) Are in entry level status and before the date of the initiation of separation action have completed no more than 180 days of continuous active duty or individual active duty for training or no more than 90 days of phase II under a split or alternate training option. (3) Have demonstrated that they are not qualified for retention. The following conditions are illustrations of conduct that does not quality for retention; (a) cannot or will not adapt socially or emotionally to military life. (b) Cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline. (c) Have demonstrated character and behavior characteristics not compatible with satisfactory continued service. (d) Have failed to meet body fat standards after application of the procedures specified in AR 600-9. (4) Have failed to respond to counselling. Entry level separation uncharacterized is used for separation under the provisions of this chapter. b. Paragraph 3-7a (Honorable Discharge), states an honorable discharge is a separation with honor. 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. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB). 4. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This 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 based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160016414 6 1