ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20170004263


APPLICANT REQUESTS:  an upgrade of her uncharacterized discharge to a general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge or Dismissal 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 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 she has an uncharacterized discharge; however, since this was under medical conditions, she feels she does not deserve an uncharacterized discharge.  She is not seeking benefits of any sorts, she just wants her character changed to general.

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

	a.  She enlisted in the Regular Army on 23 July 1997.

	b.  Her record contains a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 23 September 1997.  It shows after careful consideration of medical records, laboratory findings, and medical examination, the applicant was found medically unfit for appointment or enlistment in accordance with medical fitness standards in effect at the time.  In the opinion of the evaluating physicians, the condition(s) existed prior to service.  Her diagnosis was painful flat feet with secondary medial mid foot pronation and early hallux valgus.  Her disposition was that she was unfit for military service in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 2.

	c.  On 1 October 1997, the medical approving authority approved the findings and recommendation of the EPSBD and forwarded to the unit commander.

	d.  On 3 October 1997, the applicant was counseled.  She acknowledged that she was informed of the medical findings.  She also acknowledged her understanding that legal advice of an attorney employed by the Army was available to her and that she could consult with civilian counsel at her own expense.  She further acknowledged she understood she could request to be discharged from the Army without delay or request retention on active duty.  After counseling, the applicant concurred with the proceedings and applied for separation.

	e.  On 7 October 1997, the applicant provided a sworn statement (DA Form 2823) that states she was unaware of her condition prior to enlisting in the military.  She further states she did not attempt to defraud the United States Government to obtain medical treatment or hospitalization, monetary benefits, disability retirement or veterans’ benefits.

	f.  On 8 October 1997, after reviewing this case, her commander found nothing to indicate that the applicant willingly attempted to commit fraud against the United States Government or the United States Army.

	g.  On 9 October 1997, the unit commander recommended approval of the applicant's discharge.

	h.  On 15 October 1997, the separation authority approved the applicant's discharge from the Army.  

	i.  On 21 October 1997, the applicant was discharged.  Her DD Form 214 shows she was discharged under the provisions of AR 635-200, paragraph 5-11, after having completed 2 months and 29 days of active service.  The narrative reason for separation was "did not meet procurement medical fitness standards" and her service was uncharacterized.  

4.  By regulation (AR 635-200), paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an EPSBD, 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, the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under AR 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

5.  By regulation, an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized by 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 characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  A general discharge is not authorized.

6.  In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  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, her DD Form 214 properly shows her service as uncharacterized.

2.  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 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a 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.

	b.  Paragraph 5-11a states Soldiers who were rot medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty (AD) or ADT for initial entry training, may be separated.  Such conditions must be discovered during the first 6 months of AD.  Such findings will result in an entrance physical standards board.  This board must also be convened within the Soldier's first 6 months of AD.

	c.  Paragraph 5-11b states Medical proceedings, regardless of the date completed, must establish that, a medical condition was identified by an appropriate military medical authority within 6 months of, the Soldier's initial entrance on AD for Regular Army or during ADT for initial entry training for Army National Guard United States (ARNGUS) and United States Army Reserves that-

		(1)  Would have permanently or temporarily disqualified the Soldier for entry into the military service or entry on AD or ADT for initial entry training had, it been detected at that time.

		(2) Does not disqualify the Soldier for retention in the military service per AR 40-501, chapter 3.  As an exception, Soldiers with existed prior to service (EPTS) conditions of pregnancy or HIV infection (AR 600-110) will be separated.

	d.  Paragraph 5-11c states a Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained on active duty subject to the conditions listed below.  Approval or disapproval of requests for retention under this paragraph is delegated to the separation authority cited "in paragraph 1-19c.  No Soldier has a right to-be retained under this paragraph.  Soldiers not retained will be processed for separation.  Soldiers will not be retained under this paragraph unless both conditions below are met:

		(1)  The separation authority cited in paragraph 1-19c determines, after considering the proceedings of an Entrance Physical Standards Board that the Soldier's disqualifying condition will not prevent the Soldier from performing satisfactorily throughout his/her period of enlistment in the MOS for which he/she is being trained or in another MOS based on the soldier's medical condition.

		(2) The Soldier signs a statement requesting to complete the period of service for which enlisted.

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)	 AR20170004263


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