IN THE CASE OF: BOARD DATE: 11 February 2020 DOCKET NUMBER: AR20180002845 APPLICANT REQUESTS: * an upgrade of his uncharacterized discharge to an honorable discharge * return to active duty * service credit for the delayed entry program * new military occupational specialty (MOS) * to be awarded the National Defense Service Medal APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * Continuation Page to DD Form 149 * DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 17 May 2002 * Letter, U.S. Army Human Resources Command dated 22 May 2018 * DA Form 5016 (Chronological Statement of Retirement Points), dated 29 May 2018 * Applicant's Reserve/Retiree/Veteran Record, accessed 29 May 2019 * Code of Federal Regulations, Title 32, section 578.23, National Defense Service Medal (NDSM) * Excerpt from Army Regulation 600-8-22 (Military Awards), paragraph 2-10, NDSM and paragraph, 2-11 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. On 28 May 2018, the applicant signed a DD Form 149, with a continuation sheet and ABCMR received it on 1 June 2018. On 22 February 2002, the applicant signed a second DD Form 149, which ABCMR received on 26 February 2018. The statement below is taken from both DD Forms 149: a. The applicant, states according to his DD Form 214 he was listed as entering the Army on 21 November 2001 and discharged on 18 May 2002 (his DD Form 214 lists his discharge date as 17 May 2002). This credits him with less than 180 days service and that is incorrect. His DEP (delayed entry program) days were not credited, which began on 17 October 2001 (his DEP began on 24 September 2001). Had that date been included, he would have over 180 days service and his discharge would be invalid and illegal. He would have seen a different board and had a different procedure. b. HRC shows his last date of military obligation as 16 October 2009 and his ETS (expiration term of service) as the same, which would imply that he had to continue to serve in the IRR (Individual Ready Reserve) or something similar in case of recall. Had his discharge ended his military obligation, these dates would match with 18 May 2002. The error was the fault of his commanding officer at Fort Gordon, GA, and a failure of the military to properly process his file. He should not be penalized for circumstances beyond his control and denial of proper due process. c. The applicant further explained why he was erroneously discharged and why he deserved the National Defense Service Medal; and states because his discharge was improper, a case could be made that he is still under an IRR status and can choose to reject the discharge, meet retention standards, and return to active duty. He has applied multiple times of the years for reinstatement, having applied and written to the DoD (Department of Defense), the White House, and Review Boards. His oath of enlistment did not come with an expiration date. 3. On 24 September 2001, the applicant enlisted in the U.S. Army Reserve (USAR) for a term of 8 years for enlistment in the DEP with the understanding he would be ordered to active duty as a Reservist if he did not report to the Military Entrance Processing Station (MEPS), Fort Dix, N.J. by 21 November 2001 for enlistment in the Regular Army. He understood that his time in the DEP was not creditable for pay purposes but would be counted toward fulfillment of his military service obligation or commitment. On 21 November 2001, the applicant entered the Regular Army for a term of 6 years. 4. On 15 February 2002, after completing basic training at Fort Benning, GA, the applicant continued on the Fort Gordon, GA to complete advanced individual training (AIT). 5. His record contains two developmental counseling forms regarding what was expected of him as a Soldier in Phases IV and V and the type of discharges he could receive if he committed any acts of misconduct. 6. On 21 March 2002, the applicant completed a DA Form 7349-R (Initial Medical Review – Annual Medical Certificate). a. He answered yes to the following questions: * Do you currently have any medical/dental problems? * Have you had any medical or dental problems since your last periodic physical examination? * Have you been seen by or been treated by a dentist, physician, or other health care provider since your last periodic physical examination? * Have you been hospitalized or had surgery since your last periodic physical examination? * Are you currently taking medication, or have you taken prescription medication since your last examination? b. He stated he had asthma prior to entering service. He did not think it would interfere much with his work prior to entering service. Since entering service, he found his asthma hampered his ability to function as an effective Soldier. He was at risk to himself, his unit, and other Soldiers. He is requesting discharge because he felt his asthma prohibited him from performing his duties satisfactorily. He consulted his company commander and the commander recommended that he followed on the course to separation. c. The physician, in his review notes, stated Soldier had asthma prior to active duty but it was not disclosed at the MEPS (Military Entrance Processing Station). Per notes from the civilian medical doctor for the applicant to use an inhaler until right before active duty. The applicant did not do well off medications, ESOM (experiencing shortness of breath), poor fitness. He cannot meet minimal standards. He recommended separation in accordance with AR 40-501 (Medical Services – Standards of Medical Fitness), Chapter 2-23. 7. His DA Form 3349 (Physical Profile) show on 29 March 2002, the profiling doctor determined that the applicant was to be placed on permanent profile for asthma rating his PULHES (P––physical capacity or stamina, U––upper extremities, L––lower extremities, H––hearing and ear, E––eyes, and S––psychiatric) as "311111." It stated EPTS 200 Board initiated. On 8 April 2002, the approving authority, approved the permanent change of profile. The commander stated that the profile did require a change in the applicant's MOS and he would be unable to perform numerous tasks such as driving in a ground rod in a tactical 31S (Satellite Communication Systems Operation–Maintainer) environment. 8. On 1 March 2002, the applicant signed a Medical Examination for Separation Statement of Option in which he elected not to undergo a separation examination. 9. On 29 March 2002, an Entrance Physical Standards Board (EPSBD) Proceedings Board was convened and found the applicant was medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physician the condition existed prior to service (EPTS). a. Chief Complaint: Shortness of Breath. b. History of Present Illness: 22 year-old ADSM in AIT who had asthma diagnosed and treated prior to active duty. He came off his inhalers to enter active duty and did not disclose this at MEPS. He has had problems with his breathing since entering active duty, requiring medication. He is having difficulty performing his duties despite treatment. c. Physical Examination: well developed, well nourished, in no acute distress. Vital signs and pulse oximetry within normal limits. Lungs clear to auscultation bilaterally with fair airflow. d. He was diagnosed with Asthma, EPTS: Not Service aggravated. The board recommended separation under AR 635-200, paragraph 5-11. The proceedings were approved by the medical approving authority. The applicant concurred with the proceedings and requested to be immediately discharged from the Army. 10. On 3 May 2002 the commander recommended the applicant be discharged based on his medical condition and stated the applicant "has not" graduated from MOS 31S course. a. On 7 May 2002 the intermediate commander recommended approval and also provided the applicant "did not" graduate from [MOS] 31S course. b. On 13 May 2002, the separation authority approved the separation under reason and authority, Army Regulation 635-200, Chapter, paragraph 5-11, separation code JFW, with an entry level (uncharacterized) discharge. He stated the applicant did not graduate from 31S course and was awarded his MOS. 11. On 17 May 2002, he was discharged accordingly. His service was characterized as uncharacterized. He completed 5 months and 27 days of net active service this period. His DD Form 214 shows: * Item 6 (Reserve Obligation Termination Date): Year: 0000, Month: 00, Day: 00 * Item 9 (Command to Which Transferred): NA * Item 11 (Primary Specialty): None * Item 18 (Remarks): Period of Delayed Entry Program: 24 September 2001 – 20 November 2001 * Item 21 (Signature of Member Being Separated): Applicant's Signature * Item 23 (Type of Discharge): Discharge * Item 25 (Separation Authority): AR 635-200, paragraph 5-11 * Item 27 (Reentry Code): 3 * Item 28 (Narrative Reason for Separation): Failure to Meet Procurement Medical Fitness Standards 12. The applicant provides: a. U.S. Army Human Resources Command Letter (USAHRC), dated 22 May 2018, which states they were unable to verify his entitlement to the National Defense Service Medal. According to his DD Form 214, he did not complete his first full term of federal service. To qualify for the award he must have fulfilled his enlistment requirements to be considered for Military Service. b. DA Form 5016 (Chronological Statement of Retirement Points), dated 29 May 2018, shows retirement point beginning date as 17 October 2001 and his ending date as 17 May 2002, earning 213 total creditable points. c. USAHRC Reserve/Retiree/Veteran Record, accessed 29 May 2019, shows his Expired Statutory Military Obligation: 16 October 2009; ETS: 16 October 2009; Date Initial Entry: 17 October 2001; Date Last Released from Active Duty: 18 May 2002. d. Code of Federal Regulations (CFR), Title 32, section 578.23, NDSM, which shows the criteria for award of the NDSM. e. Excerpt from Army Regulation 600-8-22, paragraph 2-10, National Defense Service Medal provided the same information as the CFR regarding award of the NDSM. It shows: no requirement for a Soldier to fulfill his enlistment requirement to be considered for the award; however, it does require the Soldier to have honorable service; and the applicant to be on active duty at the time the NDSM was awarded. 13. The applicant petitioned the ADRB for a change in his character of service and/or reason of his discharge. On 9 January 2004, the ADRB denied his petition, determining that he was properly and equitably discharged. 14. The applicant asserts he did not receive credit for his DEP, his separation under Army Regulation 635-200, paragraph 5-11, was illegal, and he was entitled to the National Defense Service Medal. His record shows: a. Regarding his DEP service credit. He entered active duty on 21 November 2001. His DD Form 214, item 18 shows that he was credited for his DEP service, which counts towards his Reserve obligation termination date and not his active duty service. b. Regarding his contention that he was illegally discharged. His records show he underwent an EPSBD due to shortness of breath, where the applicant revealed prior to enlisting he stopped using his inhalers to enter active duty and did not disclose this medical information to MEPS. He has had problems since entrance into the service, requiring medication. The EPSD diagnosed him with Asthma, EPTS: Not service aggravated and recommended separation under AR 635-200, Chapter 5-11. The separation proceedings were initiated on the same day and the applicant was discharged within 178 days of entrance on active duty. Based on the available evidence and according to regulation the applicant was properly separated and there is no indication his rights were jeopardized and/or violated. (1) The available evidence shows the applicant was aware of and failed to provide pertinent medical information in the processing of his enlistment; based on this, his commander could have investigated further to determine whether he should be separated for fraudulent enlistment; however, his commander concurred with the EPSBD proceedings and recommended separation under paragraph 5-11. (a) Army Regulation 635-200, paragraph 5-11 (Failure to Meet Procurement Medical Fitness Standards), specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated. (b) Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. (2) According to regulation, an entry level status is defined as a Soldier who has not completed more than 180 days on AD prior to initiation of separation. The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means that the Soldier had not been in the Army long enough for his character of service to be rated as honorable or otherwise. c. Regarding his contention for award of the NDSM. He was in service during the period the NDSM was awarded. There is no requirement in the CFR or in Army Regulation 600-8-22 that the applicant completes his full service requirement to be awarded the NDSM. Governing policy and regulation requires honorable service and that the Solider served during a particular period until a date to be determined. Army Regulation 600-8-22 (Military Awards), states the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined. d. Regarding his contention for award of an MOS. The available evidence shows both the commander and intermediate commander indicate the applicant did not complete advanced individual training for MOS 31S. It appears administrative error took place in the separation approval where it clearly indicates the applicant did not completed training and then followed on with inadvertently indicating to award the applicant and MOS. His immediate and intermediate commanders both indicate he did not complete training for MOS 31S, based on this it appears including the word "not" in the preparation of the approval memorandum was overlooked. (1) Proponents are responsible for ensuring all physical and academic requirements are met prior to awarding an MOS. His individual training requirements neither the applicant nor his record provide evidence showing award of the MOS. (2) In regards to preparation of his DD Form 214, AR 635-5 states information for item 11 (Primary Specialty) will be taken from the enlisted record brief, to enter the titles of all MOS's served for at least 1 year. Do not count basic training and advanced individual training. e. Regarding his request to be reinstated back into an active component status. The evidence provides he failed to meet medical procurement standards due to his asthma. Item 27, of his DD Form 214 shows his reentry code as "3". AR 601-210 (Personnel Procurement – Active and Reserve Components Enlistment Program) states: (1) Reentry Code 3 (RE–3) applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. The person is ineligible unless a waiver is granted. (2) Any applicant who was last separated or discharged from any component of the U.S. Armed Forces for medical reasons with or without disability for enlistment into the Regular Army (RA), Army Reserve (AR), or the Army National Guard (ARNG) will require a waiver. In addition to the documents required to apply for a waiver, the applicant must provide evidence that the disqualifying condition no longer exists or justification for the waiver. 15. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, his time on the DEP, his medical condition, the outcome of the EPSBD and the reason for his separation. The Board found insufficient evidence to show the applicant completed required training and was awarded an MOS. The Board considered policy regarding time spent in the DEP and found it properly accounted for in item 18 (Remarks) of his DD Form 214; the applicant is advised that time in the DEP counts towards his Reserve obligation termination date, not his active duty service. The Board found that the applicant failed to meet medical procurement standards and that his RE Code was proper at the time of his separation; the applicant is eligible to reenter service with a waiver. The Board found the applicant was in an entry-level status at the time separation proceedings were initiated and that his character of service was proper based on his status. The Board considered the criteria for award of the NDSM and found that applicant was not eligible at the time of his separation. Based on a preponderance of evidence, the Board determined that the separation, character of service, the period of his active duty service, reenlistment code as reflected on his DD form 214, and the absence of an MOS and NDSM in his records were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for separation of enlisted personnel. a. A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. An entry level status is the first 180 days of continuous active duty (AD), or the first 180 days of continuous AD following a break of more than 92 days of active military service. b. Paragraph 5-11, separation of personnel who did not meet procurement medical fitness standards, specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of AR 40-501 (Medical Services – Standards of Medical Fitness), chapter 3, medical fitness standards for retention and separation including retirement. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. c. Chapter 7 provides a fraudulent entry is the procurement of an enlistment, re- enlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if know and considered by the Army at the time of enlistment/re-enlistment, might have resulted in rejection. Specifically concealment of medical defect or disability is not normally considered fraudulent entry within the scope of this provision. However, the concealment is fraudulent if it was done to obtain medical treatment or hospitalization, monetary benefits, disability retirement, or veteran's benefits to which the soldier is not entitled to. 3. Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. It states for: a. Item 6 (Reserve Obligation Termination Date): (1) This is the completion date of the statutory military service obligation (MSO) incurred by a soldier on initial enlistment or appointment in the Armed Forces. DOD policy requires a Soldier with no previous military service who enlisted or was appointed on or after 1 June 1984 to serve a period of 8 years. The MSO starts on the date of initial enlistment or appointment in the Regular Army, Army National Guard, or the U.S. Army Reserve to include the Delayed Entry Program (DEP). DEP time is credited in computing this date. (2) For a Soldier discharged, dismissed, or dropped from the Army rolls, or with an expired MSO, enter ?00 00 00.? Soldiers within 90 days of their MSO termination date at separation are considered to have completed their MSO. b. Item 11 (Primary Specialty): Form the enlisted record brief/officer record brief (ERB/ORB), enter the titles of all MOS or AOC served for a least 1 year and include for each MOS/AOC the number of years and months served. For time determination, 16 days or more count as a month. Do not count basic training and AIT. c. Item 12e (Total Prior Inactive Service): From previously issued DD Forms 214 and/or ERB/ORB, enter the total amount of prior inactive service, less lost time, if any. DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block. However, it is creditable service for completing the statutory MSO, and will be entered in block 18 (Remarks). 4. Army Regulation 601-210 (Personnel Procurement – Active and Reserve Components Enlistment Program) states: a. Reentry Code 3 (RE–3) applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. The person is ineligible unless a waiver is granted. b. Any applicant who was last separated or discharged from any component of the U.S. Armed Forces for medical reasons with or without disability for enlistment into the Regular Army (RA), Army Reserve (AR), or the Army National Guard (ARNG) will require a waiver. In addition to the documents required to apply for a waiver, the applicant must provide evidence that the disqualifying condition no longer exists or justification for the waiver. The approval authority for medical waivers is the Commanding General, U.S. Army Recruiting Command (CG, USAREC) or Office of the Chief Surgeon for the ARNG. The USAREC Command Surgeon will act on behalf of the CG, USAREC. 5. Army Regulation 600-8-22 (Military Awards), currently in effect, prescribes Department of the Army (DA) policy, criteria, and administrative instructions concerning individual and unit military awards. It states the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined. Second and subsequent awards of the National Defense Service Medal are denoted by a bronze service star affixed to the National Defense Service Medal. 6. 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. a. 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 on the basis of 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. b. 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) AR20180002845 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180002845 12 ABCMR Record of Proceedings (cont) AR20180002845 9