ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20170007915


APPLICANT REQUESTS:  An upgrade of his uncharacterized discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of The Unites States)
* Letter from the Department of Veterans Affairs (DVA), dated 6 February 2017

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, in effect, his uncharacterized discharge was already changed to honorable.  He needs a copy of his DD Form 214 showing honorable.

3.  The applicant provides a letter from the DVA, dated 6 February 2017, which states his character of discharge and service dates include Honorable from 20 January 2010 until 8 June 2010.  The letter also shows he has a service connected disability which entitles him to 100% service connected disability pay.

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

	a.  He enlisted in the Regular Army on 20 January 2010.

	b.  He accepted non-judicial punishment under Article 15 on/for:

* 5 April 2010, throwing his weapon on the ground and continued to perform unsafe actions three more times, he was reduced to private/E-2
* 10 April 2010, provoking speeches or gestures, wrongfully using word "f**king n***er" towards Private G, he was reduced to private/E-1
* 21 May 2010, assault, for attempting to assault another service member during a physical fitness run, by swinging at him

	c.  On 6 May 2010, his commander recommended a mental status evaluation pending a chapter 11 (Entry Level Performance and Conduct) separation from the Army.  He had a normal mental status exam.

	d.  On 17 May 2010, his immediate commander notified the applicant of separation under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for failure to adapt to military service.

	e.  His record is void of his election of rights.

	f.  On 20 May 2010, the separation authority approved his separation UP of chapter 11 AR 635-200.

	g.  On 8 June 2010, he was discharged in the rank of private/E-1 with an Uncharacterized character of service.  The reason was entry level performance and conduct.  He completed 4 months and 19 days of active service.

5.  On  15 December 2017, the applicant was notified after careful review of his application, military records, and all other available evidence, the Army Discharge Review Board determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

6.  By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applied to individuals who had demonstrated they were not qualified for retention because they:

* Inability
* Lack of reasonable effort
* Failure to adapt to the military environment
* Minor disciplinary infractions

7.  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.

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:

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, his DD Form 214 properly shows his 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.  Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applied to individuals who had demonstrated they were not qualified for retention because they:

* Inability
* Lack of reasonable effort
* Failure to adapt to the military environment
* Minor disciplinary infractions

	a.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action).  An uncharacterized description of service was required for separation under this chapter.

	b.  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.

	c.  Paragraph 3-7a (Honorable discharge) 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.  Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to AD or ADT, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted.

	d.  Paragraph 3-7b (General discharge) 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.

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)	 AR20170007915


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