ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20170009193


APPLICANT REQUESTS:  upgrade his uncharacterized discharge to honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge)
* DD form 214 (Certificate of Release or Discharge from Active Duty)
* Veterans Information Systems (VIS) documents

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 that his data was updated in the Veteran Information System and is requesting his discharge be upgraded from uncharacterized discharge to honorable discharge.

3.  Review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 12 April 2000.

	b.  DA Form 4856 (General Counseling Form), on 23 April 2000, the applicant was counseled for disobeying a lawful order from his drill sergeant (DS) when he refused to remove a bracelet that the applicant stated was part of his religious beliefs.  He also rolled his eyes and made facial gestures in a disrespectful manner.  The applicant then put down his canteen and stated that he quit.  While he was using the telephone a DS observed him kicked back on the telephone with his hand in his pocket.  The DS told the applicant to stand up while on the telephone and to remove his had from his pocket.  In a disrespectful manner, he rolled his eyes and the DS told him to do push-ups and he ignored the DS.

	c.  DA Form 4856, on 26 April 2000, the applicant was counseled about his desire to leave the Army and that he will do whatever it took to get out.  He stated that he was not going to be told what to do.  The advantages and benefits that the applicant could get from the Army, what a great life and being a great American was all about Army were explained to him.  He stated that he did not care and he told the chaplain that his goal was to live to age 25.  He rolled his eye when he was told that the commander was not available to speak with him.  He was advised that continued disobeying a lawful order and Uniform Code of Military Justice (UCMJ) was going to be recommended.

	d.  Moncrief CMHS Form 9-R (Commander’s Referral for a Mental Health Evaluation) dated 1 May 2000, requested evaluation of the applicant because he showed little or no emotion, he does what he wants when he wants, and his goal was to live to age 25.  He get along when he wants to and potential for failure to adjust to military life.  Retention is poor he does not want to adapt and a major training detractor.

	e.  DA Form 3822-R (Report of Mental Status Evaluation) dated 1 May 2000, stated that applicant should be processed expeditiously for chapter 11, Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Separation).  He does not have a mental disorder but does have a disorder of character, behavior and adaptability.

   f.  On 2 May 2000, the applicant was notified that he was being recommended for separation under chapter 11, Entry Level Status Performance and Conduct for failure to adapt to the military environment.  

   g.  The applicant acknowledge receipt of the notification of the recommendation for separation under the provisions of AR 635-200, chapter 11.

   h.  On 2 May 2000, the applicant decline to meet with counsel.   He acknowledged:

* if the discharge was approved he would receive an uncharacterized discharge
* he is ineligible to reenlist in the U.S. Army for a period of 2 years and must have a waiver
* he had the right to consult with military or civilian counsel at his own expense
* he had the right to submit statements in his own behalf
* he had the right to obtain copies of documents being sent to the separation authority
* he may waive the above rights and with draw the waiver at any time prior to the date of the separation authority orders, directs or approves his separation

   i.  Consistent with the chain of commendation the separation authority approved the discharge under the provisions of chapter 11, AR 635-200 and the applicant will be issued an uncharacterized discharge.

   j.  He was discharge from active duty on 8 May 2000 with an uncharacterized characterization of service.  His DD Form 214 shows he was discharged under the provisions of chapter 11 of AR 635-200 due to entry level performance and conduct with an uncharacterized discharge. He completed 27 days of active service.

4.  By regulation AR 635-200, sets policy and provide guidance for the separation of the personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  When separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment.

5.  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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time, set forth the basic authority for the separation of enlisted personnel. 

	a.  Paragraph 1-9d (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 active duty or active duty for training or where required under specific reasons for separations, unless an entry level status separation (uncharacterized) is warranted.

	b.  Chapter 11 of this regulation sets policy and provide guidance for the separation of the personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  When separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment.

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)	 AR20170009193


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