ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20180002349 APPLICANT REQUESTS: the Board change his character of service from uncharacterized to general (GD) for the sole purpose of having his Pennsylvania driver’s license updated with Veteran and American Flag on it 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) * Pennsylvania Department of Military and Veterans Affairs (DMVA) driver’s license designation information sheet 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 before basic training he had radial keratotomy (RK) surgery on both eyes. He then went to Fort McClellan, Alabama to start his basic training, but once there he found out he could not go down range to start training due to his surgery. However, when he arrived back home, he found out he could have had the surgery after basic training, and not just before it. He would have waited if he knew the options on having the surgery. He spoke with the Pennsylvania Department of Military and Veterans Affairs (DMVA) who informed him, if he wanted the veteran and flag on his license, this was his next step. 3. The applicant provides: a. His DD Form 214 that shows he served on active duty for 15 days from 17 January 1996 to 31 January 1996. He received a discharge with an uncharacterized character of service. b. A Pennsylvania DMVA driver’s license information sheet that shows license applicants: * must have received a discharge document in the form of a DD Form 214, National Guard Bureau (NGB) Form 22, Federal Veterans Administration (VA) medical ID card (service connected), or retired military ID * must have a character of service under conditions other than honorable with an honorable, under honorable conditions, or general discharge * do not qualify if they have an uncharacterized, under other than honorable, bad conduct, or dishonorable character of service 4. Review of the applicant’s service records shows: a. He enlisted in the U.S. Army Reserve (USAR) on 25 August 1995. b. His Standard Form (SF) 88, (Report of Medical Examination), dated 25 August 1995 at the Harrisburg military entrance processing station (MEPS) in New Cumberland, Pennsylvania shows he was qualified for his USAR enlistment. c. His SF 93, (Report of Medical History), dated 25 August 1995 at the Harrisburg MEPS shows he was in good health. There were no reports of eye trouble or wearing of glasses, and is void of information on his RK surgery. d. On 17 January 1996 He entered active duty for training at Fort McClellan, Alabama. However, he did not complete basic training. e. On 18 January 1996, a visual screening conducted at the Fort McClellan optometry clinic disqualified him due to his prior RK surgery on both eyes in the spring of 1995. f. On 22 January 1996, an entrance physical standards board (EPSBD) states, although the applicant met retention standards, he did not meet entrance standards. It was felt to be in the best interest of the applicant medically and the U.S. Government to separate him from the military under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11 for a condition noted within the first 280 days of active duty that existed prior to service and is not service aggravated. g. On 24 January 1996, the applicant provided a sworn statement that shows: * he was aware of the condition when he enlisted, and that he revealed the information to his recruiter * when asked why his written entrance physical examination was different than what he told the doctors, he stated his mother and him spoke with the recruiter about the RK surgery he had done, the recruiter saw no problem with it, and would get back to him with an answer * the recruiter later stated it was okay to have it because she asked other recruiters about it [RK] * he passed the eye test at the Harrisburg MEPS h. On 24 January 1996, the immediate commander provided a compliance memorandum reference the separation of the applicant that shows he found nothing to indicate the applicant willfully or wrongfully attempted to commit fraud against the U.S. Government or Army. i. On 24 January 1996, the applicant was counseled by the physical evaluation board liaison officer (PEBLO) about his rights in connection with the EPSBD. He was informed he did not meet procurement medical fitness standards at the time of his enlistment, and medical authorities identified the condition within 180 days of his entrance on active duty. However, it would not disqualify him for retention. He understood: * legal advice of an attorney was available, or he could consult a civilian attorney at his expense, and if desired he must initiate action through his chain of command * he may request to be discharged without delay, or request retention on active duty, and that the decision whether to retain or separate him rested with his chain of command * he applied for separation j. On 24 January 1996, the immediate commander recommended the applicant be discharged from the Army. k. On 26 January 1996, the discharge authority approved the discharge with an entry level separation of uncharacterized. l. Orders, issued by the U.S. Army Chemical and Military Police Centers and Fort McClellan, Fort McClellan, Alabama on 29 January 1996, show: * number 029-00226 – applicant discharged effective 31 January 1996 * number 029-00227 – released from his attachment for transition processing 5. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with an uncharacterized character of service. He was discharged in the rank/grade of specialist/E-4 for failure to meet procurement medical fitness standards in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11. He completed 15 days of active duty service from 17 January 1996 to 31 January 1996. 6. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations. 7. By regulation AR 635-200, (Personnel Separations – Enlisted Personnel) in effect at the time of initial separation, shows Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who become medically disqualified under these standards prior to entry on active duty (AD) or active duty for training (ADT) for initial entry training, will be separated. 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: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the applicant failing to complete all required active duty initial entry training, the Board concluded that the characterization of service received was appropriate. 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 (Personnel Separations – Enlisted Personnel) in effect during the applicant’s era of service, sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted personnel. a. Paragraph 5-11 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who become medically disqualified under these standards prior to entry on active duty (AD) or active duty for training (ADT) for initial entry training, will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of an army national guard or army reserve member’s entrance on active duty for training. b. Paragraph 3-9 (Uncharacterized Separations) states 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 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) AR20180002349 5 1