ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  13 August 2019

	DOCKET NUMBER:  AR20170015213


APPLICANT REQUESTS:  an upgrade to his uncharacterized 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 United States
* 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, his application is a request by the Department of Veterans Affair.

3.  The applicant provides his DD Form 214, which shows his service from 18 October 2001 to 29 January 2002.  

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

	a.  Having had prior service in the Army Reserve (USAR) Delay Entry Program, he enlisted in the Regular Army (RA) on 18 October 2001.  He was assigned to Alpha Company, 3rd Battalion, 13th Infantry Regiment, 1st Basic Training Brigade, Fort Jackson, SC on 26 October 2001.

	b.  On 15 December 2001, his commander, by memorandum, subject:  erroneous enlistment to the brigade commander informed him of the applicant’s inability to grasp simple concepts, his writing and speaking abilities appeared to be well below those of his peers.  Due to these observations conflicting with his enlistment General Technical (GT) score of 122.  Lieutenant Colonel X___ authorized an ASVAB retest in accordance with Personnel Command Memorandum guidance, subject:  Procedures for ASVAB Testing Requests to Army Education Centers Reference Basic Trainees/AIT Students.  He retested on I0 December 2001 at the Fort Jackson education center.  His initial and retest scores are as follows: combat (CO), clerical (CL), field artillery (FA), general maintenance (GM), motor maintenance (MM), operator and food (OF), electronics (EL), surveillance and communications (SC), and skilled technical (ST).


GT
GM
EL
CL
MM
SC
CO
FA
OF
ST
Initial
122
118
118
120
122
121
122
119
122
114
Retest
60
60
64
63
51
56
53
58
44
55
Difference
-61
-58
-54
-57
-71
-65
-69
-61
-78
-59

	c.  Based on the retest scores, he was not qualified for enlistment under the provisions of Army Regulation (AR) 601-210 RA and USAR Enlistment Program).  Under the provisions of AR 611-201, Enlisted Career Management Fields and Military Occupational Specialties, he was not qualified for his Military Occupational Specialty Multichannel Transmission Systems Operator Maintainer (31R).  

	d.  On 7 January 2002, the applicant was counseled by his commander, for separation based on an erroneous enlistment.  

	e.  The applicant was notified by the immediate commander of the proposed discharge under the provisions of AR 635-200 (Enlisted Personnel – Personnel Separations), Chapter 7, paragraph 7-15, Erroneous enlistments, re-enlistments, or extensions on 17 January 2002.  After several weeks of observation by his company cadre, it was determined that he was experiencing difficulty in grasping and retaining simple concepts.  The commander informed the applicant of his:  

* right to consulting with counsel of the basis for the contemplated action to separate him and its effects; of the rights available to him and the effect of any action taken him in waiving his rights
* right to submit a statement on his own behalf
* right to undergo a separation physical and mental evaluation 
* right to request an administrative board
* right to request appointment of military counsel for representation or representation of military counsel of choice or civilian counsel at no expense to the government

f.  The applicant acknowledge notification and declined the opportunity to consult counsel and waived all rights offered by his commander.  He elected not to submit a statement on his own behalf on 17 January 2002.  

	g.  Following the acknowledgement, the applicant’s immediate commander initiated discharge proceeding on 22 January 2002, under the provisions of AR 635-200, Chapter 7, paragraph 7-15, erroneous enlistments.  

	h.  Consistent with the chain of command’s recommendation, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 7, paragraph 7-15, erroneous enlistments and directed a character of service as uncharacterized entry level discharge.  

	i.  The applicant was discharged on 29 January 2002.  His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 7, erroneous entry, SPD: JFC - enlisted/reenlisted/extended/inducted in error/ Erroneous Enlistment or Induction.  He completed 3 months and 12 days of net active service with no lost time.  

5.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

6.  By regulation, AR 625-200, 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.

7.  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 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.

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, in effect at the time sets forth the basic authority for the separation of enlisted personnel.  Paragraph 4–5, states 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.

3.  AR 601-210, prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the RA and the USAR.  Paragraph 1-9, states for eligibility all persons who process applicants for enlistment in the RA and USAR will use the utmost care to procure qualified personnel.  Paragraph 1-9, states the eligibility of personnel will be based on their ability to meet all requirements, to include procurement of prescribed waivers.  No applicant will be accepted for enlistment before approval of any required waiver.  Processing will be immediately discontinued if an applicant for enlistment in the RA, DEP, Delayed MSO status, or USAR admits to a non-waivable disqualifying condition.  This will include, but is not limited to, an applicant who is determined to be drug dependent, admits to an open law violation or fine, or displays other non-waivable medical, moral and administrative disqualifications contained in Paragraph 4-24.  For the purpose of this paragraph, processing is to be considered any Military Entrance Processing Station (MEPS) processing including Armed Services Vocational Aptitude Battery (ASVAB) testing.

4.  AR 611-201, prescribes the enlisted military occupational specialty classification structure of the Army, paragraph 2-101, states a multichannel transmission systems operator maintainer must possess a minimum score of 100 in aptitude area EL and 100 in aptitude area SC and have the ability to read, comprehend, and clearly enunciate English.  
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.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170015213


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