ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20180003584 APPLICANT REQUESTS: an upgrade of her uncharacterized discharge to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military 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. The applicant states when asked if she had served in the armed forces, she presents her discharge documents. The uncharacterized character of service designation creates confusion and sometimes it is taken as a dishonorable discharge. She was discharged for academic reasons and her character of service should be changed to a general or academic discharge. 3. The applicant’s service records shows: a. She enlisted in the Regular Army on 4 February 1998. b. She was assigned to the Defense Language Institute (DLI) at Lackland Air Force Base, TX for language training on 9 February 1998. c. She received the following counseling and notifications on policies, standards, expectations, and academics: * unit initial counseling (DA Form 4856) on 10 February 1998 * drill sergeant mentor initial counseling (DA Form 4856) on 19 February 1998 * monthly counseling (DA Form 4856 - March 1998) on 26 March 1998 * academic counseling (Academic Counseling Record) on 27 March 1998 * academic counseling (DA Form 4856) on 2 April 1998 * notification of academic probation on 30 March 1998 * monthly counseling (DA Form 4856 – April) on 3 May 1998 * academic counseling (Academic Counseling Record) on 8 May 1998 * academic counseling (Academic Counseling Record) on 15 May 1998 * monthly counseling (DA Form 4856 – May) on 26 May 1998 * academic counseling (DA Form 4856) on 26 May 1998 d. On 15 June 1998, the applicant's immediate commander notified the applicant of his intent to initiate separation action against her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, entry level status. The specific reason was that she had failed to meet the minimum requirements, to wit: failure to achieve the minimum score of 70 on the ECL test within the required time. e. The applicant acknowledged receipt of the commander's intent to separate her on 15 June 1998. She waived consulting legal counsel and representation by military counsel and civilian counsel at no expense to the Government. She was advised of the importance of consulting with legal counsel, and the consequences of waiving that right. She acknowledged she: * understood she could submit statements in her own behalf. She elected not to submit any statements * understood she would receive an entry level discharge * understood she may, up until the date the separation authority orders, directs, or approves her separation, may withdraw the waiver of any of her acknowledged rights * understood that she will be ineligible to apply for enlistment in the U.S. Army for a period of two years after discharge. f. Subsequent to this acknowledgement, her immediate commander initiated separation action against her under the provisions of AR 635-200, chapter 11. g. On 25 June 1998, the separation authority approved the applicant's discharge under the provisions of AR 635-200, chapter 11, with her service characterized as uncharacterized. The applicant was discharged accordingly on 26 June 1998. h. Her DD Form 214 confirms she was discharged on 26 June 1998, under the provisions of AR 635-200, paragraph 11, entry level status, Separation Code JGA, with a characterization of service as uncharacterized. She completed 4 months and 23 days of active service. i. There is no evidence the applicant has applied to the Army Discharge Review Board for review of her discharge within that board’s 15-year statute of limitations. 4. Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days. It further states the character of service for members separated under the provisions of chapter 11 will be uncharacterized. For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings. 5. AR 635-200, Chapter 11 provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. This provision applied to individuals who had demonstrated they were not qualified for retention because they could not adapt socially or emotionally to military life; lacked the aptitude, ability, motivation, or self-discipline for military service; and, demonstrated characteristics not compatible with satisfactory continued service 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: 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’s separation being initiated within the first 180 day of active military service and the regulatory guidance on such separations, the Board concluded there was insufficient evidence to show an error or injustice which would warrant making a change to the applicant’s characterization of service. 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), 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. c. Chapter 11 provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. This provision applied to individuals who had demonstrated they were not qualified for retention because they: * could not adapt socially or emotionally to military life * lacked the aptitude, ability, motivation, or self-discipline for military service * demonstrated characteristics not compatible with satisfactory continued service 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) AR20180003584 4 1