ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170007514 APPLICANT REQUESTS: an upgrade of his uncharacterized discharge to honorable. 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) * Supporting Documents from applicant’s council with exhibits 1 through 13 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 through a statement of support from his council that he served on inactive duty for 1 month and 13 days. His service was disrupted due to extreme family problems in his home and his command appears to have chosen the easy way out by processing him for discharge instead of dealing with him and his family problems. He states that but for a material error of discretion and material injustice, he would have been able to continue in service while serving honorably. 3. The applicant provides a request for correction document from his council with supporting documents labeled by exhibits: * exhibit 1 (DD Form 214) – he states that he enlisted in the United States Army on 6 May 1994, ordered to his initial training on 9 May 1994 with a report date of 7 June 1994 and at the time he enlisted, he indicated that he had dependents * exhibit 2 (Orders Number 090-014) –applicant’s orders dated 9 May 1994, placing him into active duty for the completion of training with a report date of 12 August 1994 for approximately 18 weeks * exhibit 3 (DA Form 4856, General Counseling Form) dated 13 Jun 1994, applicant’s basic combat training initial counseling introducing the cadre and expectations * exhibit 4 (DA Form 4856, General Counseling Form) dated 30 June 1994, counseling the applicant on his conduct and a proposed separation action with a possible discharge of uncharacterized, honorable, general or under other than honorable conditions (OTH) under Army Regulation (AR) 635-200) (Personnel Separations) * exhibit 5 (DA Form 4856) dated 30 June 1994, counseling notifying applicant the he is recommended for a discharge form the military due to his condition of adjustment disorder * exhibit 6 (United States (US) and National Guard Counseling Form RCS 325) dated 1 July 1994 indicating that applicant was counseled on his unit recommendation for separation in accordance chapter 11, AR 635-200 * exhibit 7 (Separation Action Control Sheet, dated 29 June 1994 showing an order of applicant’s separation events * exhibit 8 (Orders Number 137-702) applicant’s discharge orders dated 18 July 1994 * exhibit 9 DA Form 2-1(Personnel Qualification Record) applicant’s service qualification * exhibit 10 (copies of applicant’s police department award certificates) * exhibit 11 (applicant’s certificate)“Certificate in Paralegal Studies” dated January 1991 * exhibit 12 (applicant’s Minister and Police Charter Member Certificate) “Ministerial Title of Chaplain” dated 18 April 2015; other certificates include International Conference of Police Chaplains, 4 charter member police certificates dated 30 September 2015, 31 October 2016, 23-24 April 2015, 14 June 2016 and 3 letters of support were submitted in support of applicant’s police member certificates dated 1 September 2015, 30 March 2016 and the third has no date., transcripts from Calvary Chapel Bible College was submitted and * exhibit 13 (Thank You Letter) dated 16 November 2916 sent to the applicant for his donation to the Wounded Warrior Project signed by a Lieutenant General * His DD Form 214 that shows his service form 7 June 1994 to 19 July 1994 4. A review of the applicant’s service record shows: a. He enlisted in the United States Army Reserve (USAR) on 6 May 1994 for 8 years. b. Orders Number 090-014 dated 9 May 1994 ordered him to initial active duty for training (IADT) under Title 10, U.S. Code, section 672, reporting on 12 August 1994 to 120th Adjutant General Battalion, Fort Jackson, South Carolina tor approximately 18 weeks or completion of basic training and his military occupational specialty training. c. On 13 June 1994, he received an initial counseling summary for basic combat training for the expectations and standards of the course of the next 8 weeks of training. d. On 30 June 1994, the applicant’s immediate commander notified him of the proposed separation under his entry level status performance and the provisions of AR 635-200 (Personnel Separations –Enlisted Personnel), chapter 11. e. On 30 June 1994, the applicant acknowledged receipt of the notification of the proposed discharge under the provisions of AR 635-200 (Personnel Separations –Enlisted Personnel), chapter 11, Entry Level Performance and Conduct. He stated that he had been afforded the opportunity to consult with appointed counsel for consultation; or military counsel of his own choice, at his own expense, he declined the opportunity. He did not to submit a statement in his own behalf. f. 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 lack of motivation, an uncharacterized discharge. g. On 12 July 1994, consistent with the chain of command recommendation, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 11, Entry Level Performance and Conduct and directed his characterization to be uncharacterized. h. The applicant was discharged from Army on 19 July 1994. His DD Form 214 shows he was discharged under the provisions of AR 635-200 (Personnel Separations –Enlisted Personnel), chapter 11, Entry Level Performance and Conduct SPD (JBA) entry level status performance and conduct and his service characterization is uncharacterized. He completed a period of 1 month and 19 days. 5. By regulation (AR 635-200) 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. 6. 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). 7. An uncharacterized discharge is neither positive nor negative; it is not "derogatory." An uncharacterized character of service is not meant to be a negative reflection of a Soldier's military service. It merely means that the Soldier has not been in the Army long enough for his/her character of service to be rated as honorable or otherwise. 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 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 and completed while he remained in a trainee status, prior to completing Advanced Individual Training, the Board concluded there was no error or injustice which would warrant making a change to the characterization of service. 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 (Personnel Separations –Enlisted Personnel) in effect at the time, 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 active duty. 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; or 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. ABCMR Record of Proceedings (cont) AR20170007514 6 1