ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20170005598 APPLICANT REQUESTS: an upgrade of her uncharacterized discharge to an honorable-medical or to general under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) rating decision 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 signed the discharge documents believing that she was given honorable medical discharge. Since separation she has been receiving treatment listed under 10% disability for injuries received while in the service. 3. The applicant provides her VA rating decision as of 5 May 2016, which shows she is receiving 10% disability compensation for her knee condition. 4. The applicant’s service record shows: a. She enlisted in the Regular Army on 11 July 1990. She was assigned to Echo Company, 4th Battalion, 39th Infantry Brigade, Fort Dix, NJ from 17 July 1990 to 13 September 1990 for basic combat training (BCT). b. Her service records are void of any facts and circumstances surrounding her discharge proceedings for the Board to review. c. She was discharged on 1 October 1990 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, SPN JFT unqualified for active duty – other, she did not meet procurement medical fitness standards no disability. Her characterization is uncharacterized. She had 2 months and 21 days active service this period, with no lost time. 5. By regulation, AR 635-200 states that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Paragraph 3-9 states 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. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the government and Secretarial plenary authority. Paragraph 4-4, characterization of service states that a Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry level status and service is uncharacterized. 6. By regulation, paragraph 5-1, Characterization of service or description of Separation. States unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions or an entry level separation uncharacterized description of service if in entry level status. No Soldier will be awarded a character of service of under honorable conditions under this chapter unless the Soldier is notified of the specific factors in his or her service record that warrant such a characterization, using the notification procedure. Such characterization is normally inappropriate for Soldiers separated under the provisions of paragraph 5-4, 5-11, 5-12, 5-15, 5-16, or paragraph 5-17. 7. 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 relief was not warranted. Based upon the applicant’s separation being initiated within the first 180 days of active federal service, the Board found insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service or narrative reason for separation. 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. AR 635-200, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge, or a characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. It will not be issued to Soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to AD. c. Paragraph 3-9, states for entry level status separation. A separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status, except in the following circumstances: * when characterization Under Other Than Honorable Conditions is authorized under the reason for separation and is warranted by the circumstances of the case * 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. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the government d. Paragraph 5-11a, states 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 entry on active duty (AD) or active duty for training (ADT) for initial entry training, will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier's initial entrance on AD for Regular Army (RA), or during ADT for initial entry training for Army National Guard (NG) and Army Reserves (USAR), which: * would have permanently or temporarily disqualified him or her for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time * does not disqualify him or her for retention in the military service under the provisions of AR 40-501, -chapter 3 3. AR 40-501 (Standards of Medical Fitness – Medical Services) gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. Chapter 3, Disposition of Soldiers who may be unfit because of physical disability. Paragraph 3-4e states Soldiers on active duty who meet retention medical fitness standards but who failed to meet procurement medical fitness standards on initial entry into the service (erroneous appointment, enlistment, or induction) may be processed for separation as provided in AR 635-200. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix E-12b, Personnel Processing Actions -Type discharge certificate issued for enlisted personnel. Service of enlisted Soldiers discharged by reason of physical disability normally will be characterized as honorable, or described as uncharacterized for those in entry level status. However, characterization of general under honorable conditions is authorized for Soldiers beyond entry level status whose service is satisfactory, but not sufficiently meritorious to warrant honorable characterization. 5. 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) AR20170005598 2 1