ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 26 November 2019 DOCKET NUMBER: AR20160018221 APPLICANT REQUESTS: his uncharacterized discharge is changed to an honorable discharge and a personal appearance to appear before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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. A review of the applicant’s service record shows: a. He enlisted in the Army National Guard (ARNG) on 27 August 2010 and was ordered to active duty for training (ADT) on 9 November 2010. b. He received several counseling statements in regards to failure to meet (APFT) Army Physical Fitness Training standards. c. On 20 April 2011, the company commander notified the applicant of his intent to initiate separation action under the provisions of chapter 11, entry level status performance and conduct (Trainee Discharge Program) for his inability to adapt to socially and emotionally to the military environment. d. The applicant acknowledged the commanders’ notification and waived his right to consult with counsel. The applicant understood the following: * he would receive an entry level separation with uncharacterized service * he would not be permitted to apply for reenlistment in the United States Army within 2 years of his separation * he declined the opportunity to submit a statement on his behalf e. On 20 April 2011, the commander initiated the separation action under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) 635-200, chapter 11, entry level status performance and conduct. f. Consistent with the chain of command's recommendation, the separation authority approved the separation under the provisions of AR 635-200, chapter 11, and directed the issuance of an entry level separation discharge (uncharacterized). g. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was relieved from initial entry training without receiving a military occupational specialty, and transferred to his ARNG unit located in Allentown, Pennsylvania on 4 May 2011, under the provisions of AR 635-200, paragraph 4-2h, entry level performance and conduct, with his service characterized as uncharacterized. He completed 5 months and 4 days of net active service this period. h. His NGB Form 22 shows he was subsequently discharged from the ARNG on 4 May 2011 and provided an uncharacterized character of service. 3. By regulation, AR 635-200, chapter 11, sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while an entry level status. This separation policy applies to enlisted members of the Regular Army who have completed no more than 180 days active duty on their current enlistment by the date of separation and have demonstrated they are not qualified for retention for one or more of the following reasons: * cannot or will not adapt socially or emotionally to military life * cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline * failed to respond to counseling a. By regulation, a separation is described as an entry-level separation if processing is initiated while a member is in an entry-level status. The exceptions are when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that an honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. A general; discharge is not authorized. b. During the first 180 days of continuous active military service, a member's service is under review. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions (misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial). 4. AR 635-200, in effect at the time he was separated provided that an uncharacterized separation was an entry-level separation; for Soldiers ordered to initial ADT, entry-level status terminated 180 days after beginning training. However, current guidance provides that Reserve Component (RC) Soldiers completing active duty that results in the award of an MOS, even when the active duty period is less than 90 days (for example, completion of the advanced individual training component of ARNG of the U.S. (ARNGUS) Alternate Training Program or USAR Split Training Program), will receive a character of service of honorable unless directed otherwise by the separation approval authority. 5. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. The governing regulation provides that a separation will be described as uncharacterized, if the separation action is initiated within the first 180 days of active duty service. As such, his DD Form 214 properly shows his service as uncharacterized. An uncharacterized discharge 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 or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request. 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 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 635-200 (Personnel Separations-Enlisted Personnel) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that 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. b. Paragraph 3-7b provided that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11, paragraph 11-1 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status. d. Paragraph 11-2 states when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter. However, nothing in this chapter prevents separation under another provision of this regulation when such separation is warranted. 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 (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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160018221 5 1