ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: 20170007127 APPLICANT REQUESTS: an upgrade to her uncharacterized discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Medical Profile Sheets 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 her medical records reflect the reason for her separation was due to an injury received during training. She believes it is in her best interest to have her DD Form 214 (Certificate of Release or Discharge from Active Duty) accurately reflect the type of discharge and an uncharacterized discharge was an unfair assessment. 3. The applicant provide two medical profile sheets from the Moncrief Army Community Hospital dated, 17 October 1996 which diagnosed her with bursitis and placed her on 4 days of limited physical activities, and on 1 November 1996 she was diagnosed with lower extremities stress fracture and placed on 7 days of limited physical activities. 4. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 19 September 1996. b. Her DA Form 2-1 ( Personnel Qualification Record) shows that she was assigned to the 3rd Battalion, 13th Infantry, 1st Basic Combat Training Brigade, Fort Jackson, SC on 4 November 1996. c. Her service record contains five counseling statements on various offenses: • 4 October 1996, initial performance counseling • 19 October 1996, end of phrase I/II performance, failure to follow orders, lack of self-discipline, and diagnostic physical readiness test failure • 4 November 1996, conduct and notification of separation • 4 November 1996, declined physical training retraining program (PTRP) d. The signed a DA Form 2823 (Sworn Statement) on 4 November 1996 stating that she did not want to enter the Physical Training Rehabilitation Platoon and would rather leave the Army. e. The applicant was notified by the immediate commander of the proposed discharge under the provisions of AR 635-200 (Enlisted Personnel – Personnel Separations), chapter 11, Entry Level Performance and Conduct due to failure to adapt on 4 November 1996. He informed her of her rights to consult with consulting counsel, the right to submit a statement in you her own behalf, the right to request a separation physical, and the right to waive the rights in writing. f. On 4 November 1996, the applicant acknowledged receipt of the notification of her proposed discharge from the Army. She elected not to submit a statement in her own behalf, she had no desire to consult with consulting counseling and declined a separation physical. g. Following the acknowledgement, the applicant’s immediate commander initiated discharge proceeding from the Army under the provisions of AR 635-200, chapter 11, Entry Level Performance and Conduct, for failure to adapt a uncharacterized discharge. h. Consistent with the chain of command recommendation, on 7 November 1996 the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 11, Entry Level Performance and Conduct and directed her characterization to be uncharacterized. i. The applicant was discharged from Army on 14 November 1996. Her DD Form 214 shows she was discharged under the provisions of AR 635-200, chapter 11, Entry Level Performance and Conduct SPD (JGA) entry level status performance and conduct or entry level status performance - pregnancy, and her service characterization is uncharacterized He completed a period of 1 months and 26 days. 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. 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: 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 XX XX XX 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 and Secretarial plenary authority d. Paragraph 11–1, sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status. e. Paragraph 11-2, states that separation of a Soldier in entry level status may be warranted on the ground of unsatisfactory performance or unsatisfactory conduct (or both) as evidenced by: inability, lack of reasonable effort, failure to adapt to the military environment, and minor disciplinary infractions. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) 20170007127 4 1