ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:    7 May 2019

	DOCKET NUMBER:  AR20170003136


APPLICANT REQUESTS: his entry level status discharge be upgraded to a general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge From Active Duty)

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 although he had some issues, he wore the uniform with pride and integrity and that he has grown up.  He is pleading for help.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 24 August 1984.

	b.  On 9 November 1984, 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. 

	c.  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	
	d.  On 9 November 1984, the commander initiated the separation action under the provisions of AR 635-200, chapter 11, entry level status performance and conduct.

   e.  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).

	f.  On 16 November 1984, the applicant was discharged from the Army with an entry level status character of service.  His DD Form 214 shows that he had 2 months and 23 days of active service.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  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).

5.  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 determined that partial relief was warranted.  Based upon the applicant’s administrative separation being initiated within the first 180 days of military service, the Board concluded that the characterization of service issued at the time of discharge was in error.  For that reason and based upon regulatory guidance on the subject, the Board recommended changing the characterization of service to Uncharacterized.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as “Uncharacterized”.

	 

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 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.

ABCMR Record of Proceedings (cont)	 AR20170003136


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