IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20170000464 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 26 April 2010, to show a more favorable separation authority, separation code, reentry (RE) code, and narrative reason for separation. 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), dated 25 October 2016 * Standard Form (SF) 600 (Chronological Record of Medical Care), covering the period 3 March through 14 April 2010 * Memorandum, Request for Medical Information, dated 22 December 2010 * Department of Veterans Affairs (VA) Rating Decision, dated 13 December 2011 * VA Compensation Awards Letter, dated 29 December 2011 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 his discharge was inequitable because it was based on the medical information provided by the VA Medical Center. The two conditions were incurred during his military service. He was told by a recruiter that the type of discharge and RE code he was given make it impossible for him to reenter the Armed Forces. 3. The applicant enlisted in the U.S. Army Reserve on 10 December 2009. He entered initial active duty for training (IADT) on 12 January 2010. 4. The applicant was issued a temporary duty restriction on 17 February 2010, restricting his ability to participate in various aspects of training due to a potentially disqualifying bilateral foot condition; diagnosis, congenital foot deformity – pes planus. Temporary duty restrictions were extended on 16 March 2010 and again on 14 April 2010, further restricting his ability to participate in all exercise, marching and drills. Corresponding medical documentation and podiatry notes recommended an entry level separation. 5. The applicant was notified by his immediate commander of the commander's intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), Chapter 11, entry level performance and conduct. The specific reason for the proposed action was the applicant's inability to perform his military duties due to a pre-existing medical condition. The commander further stated the final decision in the applicant's case rested with the separation authority and, if approved, the applicant would receive an entry-level separation with uncharacterized service. The commander advised him of his rights. 6. Subsequently, the applicant acknowledged receipt of the notification of separation action. a. He was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-200, Chapter 11 and its effects, of the rights available to him, and the effect of any action by him in waiving those rights. He elected not to submit a statement in his behalf. He declined the opportunity to consult with military or civilian counsel. He voluntarily waived a separation physical. b. In an additional affidavit, he was advised of the rights and advantages of remaining on active duty for the purpose of completing hospital care and/or physical disability evaluation under the provisions of Title 10 USC, Chapter 61. He elected not to remain on active duty to undergo any additional care or medical evaluations. 7. The applicant's immediate commander formally recommended the applicant's separation from the Army on 14 April 2010, under the provisions of Army Regulation 635-200, Chapter 11, by reason of his inability to perform his military duties due to an existing medical condition. He recommended the requirement for rehabilitation be waived, and the applicant not be transferred to the Individual Ready Reserve (IRR). 8. The separation authority reviewed the proposed separation action on 19 April 2010 and approved an uncharacterized, entry level separation under the provisions of Army Regulation 635-200, Chapter 11. 9. The applicant was discharged on 26 April 2010. The relevant DD Form 214 he was issued indicates he was separated under the provisions of Army Regulation 635-200, Chapter 11, with an uncharacterized character of service. His separation code was noted as "JGA," his RE code was noted as "3," and his narrative reason for separation was noted as "Entry Level Performance and Conduct." He was credited with three months and 15 days of net active service. 10. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his service characterization. The board reviewed the applicant's overall record of service and concluded on 2 September 2011 that his discharge was both proper and equitable. The board noted that an uncharacterized discharge is not an adverse separation action and denotes only that the individual had less than 180 days on active duty. The board determined the reason for discharge and characterization of service were both proper and equitable and denied relief. 11. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time his separation processing commenced. As a result, his service was appropriately described as "uncharacterized" in accordance with governing regulations. 12. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service and medical records, and the character and reason for his separation. The Board noted the facts presented above. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for the Active Army and Army Reserve enlistment program. Table 3-1 (U.S. Army RE Eligibility Codes) included a list of the RE codes: * RE code "1" applied to Soldiers completing their term of active service who were considered qualified to reenter the U.S. Army; they were qualified for enlistment if all other criteria are met * RE code "3" applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation, but disqualification was waivable; unless the appropriate authority granted a waiver, they were ineligible for reentry * RE code "4" applied to Soldier separated with a nonwaivable disqualification 3. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designator (SPD) Codes) provides that the separation code "JGA" applied to Soldiers whose discharge resulted from entry level conduct or performance, under the provisions of Army Regulation 635-200, Chapter 11. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. This cross reference table shows the separation code "JGA" has a corresponding RE code of "3." 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provided that a discharge certificate or certificate of release from AD will be given to each Solder of the Army upon discharge from the service or release from AD. The regulation states an entry-level separation will be uncharacterized, except when a characterization of under other than honorable conditions 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 an honorable characterization of service is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. b. Chapter 5, paragraph 5-11, provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on AD or IADT would be separated. Medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into military service had it been detected at that time, and the medical condition did not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501(Standards of Medical Fitness). Soldiers who do not meet the medical fitness standards for retention or whose existed prior to service (EPTS) condition has been aggravated by military service, will be processed per Army Regulation 635–40 (Physical Evaluation for Retention, Retirement or Separation). c. Chapter 11 set forth the policy for the separation of Soldiers because of unsatisfactory performance or conduct (or both) while in entry level status. This policy applied to enlisted personnel with less than 180 days of creditable AD or IADT. Separation under this chapter was warranted on the grounds of unsatisfactory performance as evidenced by inability, lack of reasonable effort, failure to adapt to the military environment or minor disciplinary infractions. The following are examples of disqualifying conduct or performance: * cannot or will not adapt socially or emotionally to military life * cannot meet minimum standards for successful completion of training due to lack of aptitude, ability motivation or self-discipline * demonstrated character and behavior characteristics not compatible with satisfactory continued service * failed to respond to counseling 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20170000464 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170000464 5 ABCMR Record of Proceedings (cont) AR20170000464 4