IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180005146 APPLICANT REQUESTS: The applicant requests correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 18 February 2003, by: * Changing her uncharacterized character of service to honorable * In effect, revising her narrative reason for separation to reflect her service- connected injuries APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board (ADRB)) * Department of Veterans Affairs (VA) letter * Two DD Forms 214 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 her VA medical records were updated to show the award of a 30 percent disability rating for service-connected injuries. Additionally, the applicant notes she had had prior service; as such, she should not have been issued an uncharacterized character of service, despite having served for less than 6 months. She provides a 16 November 2015 letter from VA that states, effective 26 March 2015, VA respectively assigned the applicant 10 percent disability ratings for her right and left knees, based on having patellofemoral pain syndrome (pain resulting from damage to the cartilage under the kneecap), and an additional 10 percent rating for low back pain; her combined disability rating was 30 percent. 3. The applicant's service records show: a. On 24 August 1995, the applicant enlisted into the Regular Army for 4 years. While still participating in initial training, the applicant was discharged under chapter 8 (Separation of Enlisted Women – Pregnancy), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) due to pregnancy. Her DD Form 214 shows she completed 5 months and 28 days of her 4-year enlistment contract and was not awarded a military occupational specialty (MOS). Her character of service was uncharacterized. b. On 29 January 2002, the applicant enlisted into the Washington Army National Guard (WAARNG) for a term of 7 years, 6 months, and 2 days. On 4 November 2002, the WAARNG honorably discharged the applicant; item 23 (Authority and Reason) of her NGB Form 22 states, "Request of the Soldier not to be discharged from the Reserve of the Army status to be Army Reserve." c. On 5 November 2002, the applicant enlisted into the U.S. Army Reserve for a 7-year term. On 18 November 2002, she entered active duty and was transferred to Fort Jackson, SC, to complete initial training. d. The applicant's separation packet is not available for review; however, her service record includes a DD Form 214, which shows, on 18 February 2003, she was discharged with an uncharacterized character of service, based on failing to meet procurement medical fitness standards. Her DD Form 214 shows she completed 3 months and 1 day of net active duty service; the separation authority was paragraph 5-11 (Separation of Personnel who did not meet Procurement Medical Fitness Standards), AR 635-200. The applicant was not awarded an MOS. e. On 17 January 2020, the U.S. Army Human Resources Command (HRC) provided an advisory opinion, which stated both of the applicant's DD Forms 214 were correctly issued. HRC referenced provisions, found in ARs 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) and 635-200, that affirm Soldiers separated while in an entry-level status receive an uncharacterized character of service. HRC pointed out that the evidence of record did not show the applicant ever completed initial training, nor was she awarded an MOS. f. On 30 January 2020, the Army Review Boards Agency (ARBA) provided the applicant a copy of the advisory opinion for review and the opportunity to submit a statement or additional evidence on her own behalf; the applicant did not respond. 4. Due to the unavailability of the applicant's separation packet, the Board is unable to determine the specific circumstance(s) that led to her discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of her DD Form 214, the Board presumes the applicant's leadership completed her separation properly. Per AR 15-185 (ABCMR), applicants bear the burden of proving an error by providing enough evidence to overcome the foregoing presumption. a. During the applicant's era of service, commanders were to initiate separation action against Soldiers who did not meet procurement medical fitness standards. (1) Medical proceedings had to establish that medical authority identified a Soldier's disqualifying medical condition(s) within 6 months of that Soldier's entrance on active duty, and that the condition(s) would have permanently or temporarily disqualified him/her, had those condition(s) been identified earlier. (2) In addition, Soldiers who were in an entry-level status were required to be issued an uncharacterized character of service; Reserve Component Soldiers remained in an entry-level status until 90 days after the start of advanced individual training. The Secretary of the Army could, on a case-by-case basis, issue honorable characters of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. b. Army policy subsequently changed, and currently states Reserve Component (RC) Soldiers may be issued an honorable character of service upon completion of initial entry training, but they must first have been awarded an MOS and then reported for duty to their follow-on units of assignment. The evidence of record shows the applicant never completed initial training (either in 1996 or in 2003), was never awarded an MOS, and never reported for duty at a follow-on unit of assignment following her separation. 5. The applicant provides evidence that VA awarded her a 30 percent service- connected disability rating; the rating's effective date is 26 March 2015. The VA and the Army operate under separation provisions of Federal law, and decisions made by the VA are not binding on the Army. a. Title 38 (Veterans' Benefits), U.S. Code, sections 1110 (Wartime Disability Compensation – Basic Entitlement) and 1131 (Peacetime Disability Compensation – Basic Entitlement) permit the VA to award compensation for disabilities incurred during or aggravated by active military service. The VA is empowered to award disability ratings in order to compensate the Veteran for the loss of civilian employability; this includes any service-connected conditions detected after discharge. Unlike the Army, the VA can continue to evaluate a Veteran throughout his or her lifetime, and, based upon subsequent VA's examinations and findings, make adjustments to the Veteran's disability ratings. b. In contrast to VA, the Army's disability system operates under Title 10, U.S. Code; the Army only rates those conditions determined to be physically unfitting during his/her term of active duty service, and for which the Soldier has been determined to have been disqualified from further military service. The Army disability rating is intended to compensate the Soldier for the loss of a military career. The mere presence of an impairment does not, of itself, automatically result in a finding of unfitness due to physical disability. 6. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published 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, her record of service, the applicant’s two periods of active duty, the absence of a second separation packet and the different reasons for her separations. The Board found in neither case that the applicant completed her required training or that she was awarded an MOS; she was in an entry-level status at the time of both separations from active duty. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon both her separations 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 : : : 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-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, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (Uncharacterized Separations). Soldiers separated in an entry- level status receive an uncharacterized character of service. A separation is an entry- level status separation if its processing is initiated during the Soldier's first 180 days of continuous active duty. Headquarters, Department of the Army could, on a case-by- case basis, direct the issuance of an honorable character of service to entry-level Soldiers when it was clearly warranted by unusual circumstances involving personal conduct or duty performance. d. Paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment were to be separated. Entrance Physical Standards Board proceedings were required to be convened within the Soldier's first 6 months of active duty service, and had to establish the following: that medical authority identified the disqualifying medical condition(s) within 6 months of the Soldier's initial entrance on active duty; that the condition(s) would have permanently disqualified the Soldier from entry into military service, had it been detected earlier; and that the medical condition did not disqualify him/her for retention in military service. A Soldier disqualified under this provision could request retention on active duty; the separation authority made the final determination. 3. AR 635-40, in effect at the time, governed the evaluation for physical fitness of Soldiers would might be unfit to perform their military duties due to a disability. Paragraph 3-1 (Standards of Unfitness Because of Physical Disability). The mere presence of an impairment did not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to compare the nature and degree of the physical disability with the duty requirements of the soldier, based on his or her office, grade, rank, or rating. 4. 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 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. 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) AR20180005146 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005146 6 ABCMR Record of Proceedings (cont) AR20180005146 5