ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20170001090 APPLICANT REQUESTS: his character of service be changed from uncharacterized to honorable on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 May 2001. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs (DVA) letter of service * DD Form 214 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, he would like to have his character of service on his DD Form 214 be changed to honorable because he has a letter that shows his character of discharge as being honorable. 3. The applicant provides his letter from the DVA, dated 22 November 2016, that shows he entered active duty on 6 March 2001 and was released on 18 May 2001. The letter also shows his character of discharge to be honorable. 4. A review of the applicant’s service record shows the following: a. He enlisted in the New York Army National Guard (NYARNG) on 31 August 2000. b. Orders 188-009, dated 25 September 2000, published by the New York Entrance Processing Station, Brooklyn, NY, show he was ordered to initial active duty training (IADT) at Fort Jackson, SC. His report date was 12 March 2001. c. On 3 May 2001, the applicant’s immediate commander notified the applicant of the intent to separate him under the provisions of Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel), chapter 11 (Entry level performance and conduct). His commander specified in the notification, the reason for the proposed action was the applicant’s failure to adapt (FTA). The applicant was advised of his rights to the following: * Consult with military counsel and/or civilian counsel * Submit statements on his own behalf * Obtain copies of documents sent to the separation authority * Entitled to a hearing before an administrative board * Waive his rights in writing, and withdraw of such waiver prior to date the separation authority orders, directs, or approves the separation d. The applicant acknowledged receipt of the notification and advisement of his rights. He did not desire to consult with appointed military counsel and/or civilian counsel at his own expense, and did not provide statements on his own behalf. He understood that he may, up until the date the separation authority orders, directs, or approves his separation, withdraw the waiver of any of his rights, and that if the recommendation was approved, he would receive the entry-level separation with an uncharacterized discharge. e. On 3 May 2001, the applicant’s immediate commander initiated separation action against the applicant. He cited the specific factual reasons for action recommended as the applicant's failure to adapt after repeated counseling. The commander stated, he did not consider it feasible or appropriate to accomplish a disposition other than separation from the Army. f. On 4 May 2001, he was counseled by Master Sergeant (MSG) X_ X. X_, U.S. Army Reserve/ National Guard Liaison Non-commissioned Officer for a failure to adapt. He was counseled in regards to the commander’s recommendation for separation, and understood, if discharged, he may lose educational and medical benefits, as well as other benefits or entitlements related to his enlistment. He understood the probable type of discharge and character, and current reentry probability with or without a waiver. He concurred with the recommendation and counseling. g. The separation authority reviewed and approved the recommendation for separation with the issuance of an uncharacterized discharge (Undated). h. On 11 May 2001, the separation authority waived the rehabilitative transfer requirement, in accordance with AR 635-200 paragraph 1-16d, that such a transfer will serve no useful purpose or produce a quality Soldier. i. Orders 135-1312, dated 15 May 2001, published by Headquarters, U.S. Army Training Center, Fort Jackson, show he was released from active duty for training, discharged from the Reserve of the Army, and returned to his Army National Guard unit. The effective date was 18 May 2001. j. DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 18 May 2001, shows he served 2 months, and 13 days. Block 11 (Primary Specialty) reflects “none”. He was released from ADT and discharged from the Reserve of the Army and returned to the Army National Guard. His character of service is uncharacterized for entry level performance and conduct. k. NGB Form 22 (Report of Separation and Record of Service), for the period ending 18 May 2001, shows he served 8 months, and 18 days. His character of service was uncharacterized. l. Orders 171-030, dated 20 June 2001, published by the Office of the Adjutant General for the State of New York show he was discharged as uncharacterized from the Army National Guard and as a Reserve of the Army effective 18 May 2001. 5. The applicant's record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of his separation. 6. By AR 635-200, Soldiers are subject to separation under the provisions of chapter 11 due to unsatisfactory performance and/or conduct while in an entry-level status. 7. By AR 635-200, paragraph 1-16d (Counseling and rehabilitative requirements) shows the rehabilitative transfer requirement may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such a transfer will serve no useful purpose or produce a quality Soldier. 8. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. 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 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, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-7 (Types of administrative discharges/character of service) provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 3-9 (Uncharacterized separations) provides that a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. c. Paragraph 11-2 provides that the basis for separation of a Soldier in an entry level status may be warranted on the grounds of unsatisfactory performance and/or unsatisfactory conduct as evidenced by: * Inability * Lack of reasonable effort * Failure to adapt to the military environment * Minor disciplinary infractions 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) AR20170001090 5 1