IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20180004327 APPLICANT REQUESTS: The applicant in effect requests his uncharacterized discharge be changed to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Four letters from the Department of Veterans Affairs 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 he was discharged then had to fight the reason he was discharged. He was discharged because while enlisted he came down with asthma. This didn’t allow him to pass the Physical Fitness (PT) test prior to graduating advanced individual test (AIT); now he has service connected asthma. He would like his DD Form 214 corrected to show honorable instead of uncharacterized. 3. On 21 August 1991, the applicant enlisted in the Regular Army for two years, completing basic combat training (BCT). 4. The applicant was formerly counseled from 14 November 1991 to 3 December 1991 for: * 14 November 1991 - failing to get permission to go to the post exchange (PX) from his Drill Sergeant (DS) * 26 November 1991 – failure to be at appointed place of duty, 0600 inspection * 29 November 1991 – failure to be at appointed place of duty, building 4210 * 29 November 1991 – notice of consideration of chapter 11 separation * 3 December 1991 – failure to adjust/unsatisfactory performance 5. On 3 December 1991, he was formerly counseled again for failure to adjust and poor attitude. He was unable to adapt to military life and should be discharge. His commander then notified him that he was initiating action to separate him under the provisions of chapter 11, Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) with a service characterization of (Entry Level Separation – uncharacterized). 6. On 9 December 1991, the applicant acknowledged being notified of the contemplated separation action against him, indicating he would not submit a statement on his own behalf and was made aware of his available rights and consulted with legal counsel. 7. The applicant's commander recommended approval and the appropriate authority approved the recommendation on 10 December 1991 and directed he would be issued an entry level separation – uncharacterized. 8. On 16 December 1991, the applicant was discharged accordingly. He completed 3 months and 22 days of net active service. 9. The applicant states in effect he was discharge because couldn’t pass the PT test prior to graduating AIT and now has service connected asthma. His records are void of the applicant being discharged for failing his PT test or a diagnosis of asthma, however it shows he was specifically separated for going to the PX without permission, failing to be at his appointed place of duty twice, and failure to adjust with a poor attitude. 10. The applicant provides four letters from the Department of Veterans Affairs showing the applicant has service connected disabilities with an evaluation of 100% as well his characterization as honorable with access to the commissary and the exchange 11. AR 635-200 states separation under Chapter 11 applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action) who could not meet the minimum standards for completion of training. An uncharacterized description of service was required for separation under this chapter. 12. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the letters he provided from the VA, his record and length of service, the frequency and nature of his misconduct and the reason for his separation. The Board found no in-service evidence to support the applicant’s claim regarding the reason for his separation. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 of the regulation in effect at the time 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 b. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action). An uncharacterized description of service was required for separation under this chapter. c. It states in pertinent part that an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when 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. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. d. 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. e. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. f. (Uncharacterized Separations). A separation was deemed entry-level status when commanders initiated the action while the Soldier was within the first 180 days of continuous active duty. Soldiers separated in an entry-level status were issued an uncharacterized character of service. On a case-by-case basis, and when clearly warranted due to unusual circumstances involving personal conduct or duty performance, the Secretary of the Army could grant a Soldier an honorable character of 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. 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 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. 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) AR20180004327 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180004327 5 ABCMR Record of Proceedings (cont) AR20180004327 4