ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20170011316 APPLICANT REQUESTS: an upgrade to her 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 214 (Certificate of Release or Discharge from Active Duty) 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 was told in 2003 when she was discharged that her discharge would automatically change to honorable after 6 months. She found out recently that is not the case and was told by the Veterans Affairs office that it would involve an application request to a review Board. 3. The applicant provides her DD Form 214 that shows her service from 7 November 2003 to 6 February 2003. 4. A review of the applicant’s service record shows: a. Having had prior service in Army Reserve Delayed Entry Program, she enlisted in the Regular Army on 7 November 2002. b. Her DA Form 2-1 ( Personnel Qualification Record) shows that she was assigned to the 2nd Battalion, 39th Infantry Regiment, 4th Basic Combat Training Brigade, Fort Jackson, SC on 15 November 2002. c. Her service record contains three counseling statements: • 4 December 2002, her initial performance counseling, failed diagnostic Army physical fitness test (APFT) • 17 January 2003, a performance counseling for lack of motivation, failure to adapt, not adhering to the Army’s seven core values, and not grasping the Soldierization process • 23 January 2003, a performance counseling for lack of motivation d. The applicant was notified by the immediate commander of the proposed discharge under the provisions of AR 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 11, Entry Level Performance and Conduct, due to the lack of motivation on 23 January 2003. 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. e. On 23 Jcanuary 2003, the applicant acknowledged receipt of the notification of the proposed disharge under the provisions of AR 635-200, chapter 11, Entry Level Performance and Conduct. She stated that she had been afforded the opportunity to consult with appointed counsel for consultation; or military counsel of her own choice, at her own expense, she declined the opportunity. She did not to submit a statement in her 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. Consistent with the chain of command recommendation, on 23 January 2003 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. h. The applicant was discharged from Army on 4 February 2003. 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 2 months and 28 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 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. 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. ABCMR Record of Proceedings (cont) AR20170011316 4 1