ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20170014026


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
* DD Form 149 (Application for Correction of Military Record)
* DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty
* VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits)
* SF Form 88 (Report of Medical Examination)
* SF Form 93 (Report of Medical History)
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative)
* DA Form 2-1 (Service Record)

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.  A review of the applicant’s service record shows:

   a.  He enlisted in the Army Reserves on 28 September 1982 and did an immediate reenlistment into the Regular Army on 30 November 1982.

b.  He accepted non-judicial punishment on 11 January 1983 for:

* Disobeying a lawful order from a noncommissioned officered
* Wrongful use of provoking words towards a noncommissioned officer

  c.  On 2 February 1983, the applicant’s immediate commander notified him of his intent to separate him under the provisions of Army Regulation (AR) 635-200, Chapter 11 (Trainee Discharge Program), specifically for substandard performance, disrespect to his superiors and an apathetic attitude.
  
  d.  On 2 February 1983, the applicant acknowledge receipt of the notification of the proposed separation action.  He did not desire to make a statement or submit a rebuttal.  He further acknowledged:

* due to non-completion of required active duty time, VA and other benefits will be affected
* he would not be able to apply for reenlistment in the United States Army for two years of the separation

    e.  On 15 February 1983, consistent with the chain of command recommendations, the separation authority approved the entry level separation under the provisions of Chapter 11, AR 635-200.

   f.  He was discharged from Active duty on 17 February 1983 with an uncharacterized character of service.  He completed 2 months and 18 days of active service.  
   
3.  By regulation members are subject to separation in entry level status by unsatisfactory performance or minor disciplinary infraction or both.

4.  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, sets forth the basic authority for the separation of enlisted personnel.

  a.  Paragraph 3-7a (Honorable Discharge) states 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.
  
   b.  Paragraph 3-9 (Entry Level Separation) states a separation will be described as an entry level separation if processing is initiated while soldier is in an entry level status.

   c.  Chapter 11 of that regulation provides members are subject to separation in entry level status by unsatisfactory performance or minor disciplinary infraction or both.
   
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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170014026


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