BOARD DATE: 31 January 2020 DOCKET NUMBER: AR20180005951 APPLICANT REQUESTS: The applicant requests upgrade of her uncharacterized character of service to honorable. 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 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 she believes she was given an uncharacterized character of service because her service-connected injury was not reflected. She has spoken to the Department of Veterans Affairs (VA) and the representatives told her their system indicates she was honorably discharged. 3. The applicant's service records show: a. On 19 September 1990, the applicant enlisted into the Regular Army for 2 years and 20 weeks. On or about 25 September 1990, the applicant arrived at Fort Jackson, SC to complete basic combat training (BCT). Between 27 September and 28 November 1990, the applicant's BCT chain of command issued the applicant 14 counseling statements (DA Form 4856 (General Counseling Form)) in which her leaders affirmed she continually failed the Army Physical Fitness Test (APFT), fell out of physical training runs, and performed poorly during training. (1) On 1 November 1990, one of the applicant's drill sergeants wrote that the applicant was having trouble with her knee; as a result, she had gone on sick call that day and the doctor had issued the applicant a 10-day physical profile, restricting her physical activities. The drill sergeant further noted the applicant had continually been going on sick call since 28 September 1990 and had already been issued previous physical profiles. He recommended the applicant be recycled to another BCT course. (2) On 28 November 1990, the applicant's BCT commander advised her in a counseling statement that, because she had failed 3 diagnostic APFTs and 6 EOC (end-of-cycle) APFTs, and had demonstrated a lack of motivation, he intended to recommend her for separation. b. On 6 December 1990, the applicant's BCT commander advised her, via memorandum, of his intent to separate the applicant under chapter 11 (Entry Level Status Performance and Conduct (Trainee Discharge Program)), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander cited the applicant APFT failures and lack of motivation as the reasons for his action. c. On 7 December 1990, the applicant acknowledged the commander's notification and affirmed that, if the separation action was approved, she would receive an entry level separation with an uncharacterized character of service. With regard to her available elections, she chose not to consult with counsel and not to submit statements in her own behalf. d. On 13 December 1990, the separation authority approved the commander's recommendation and directed the applicant's entry level separation with an uncharacterized character of service; on 19 December 1990, the applicant was discharged accordingly. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 3 months and 1 day of her enlistment contract; she was not authorized any awards. 4. The applicant asserts she was given an uncharacterized character of service because her service-connected injury was not reflected; VA has told her their system shows she was honorably discharged. a. During the applicant's era of service, commanders could initiate separation action against Soldiers who demonstrated unsatisfactory performance and/or conduct, as evidenced by an inability, a lack of reasonable effort, or a failure to adapt to the military environment. b. In reaching its determination, the Board can consider the applicant's petition, her service record, as well as her statements, in light of the published guidance on equity, injustice, or clemency. 58. With regard to the applicant's assertion that, according to VA records, she received an honorable discharge, the Army and the VA operate under separate provisions of Federal law, and each makes determinations regarding Soldiers/former Soldiers based on their own internal criteria. The Army is not bound by any determinations made by the VA. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, the reason for her separation, and the length of her service. The Board noted that entry level discharges under the provisions Chapter 11, AR 635-200, were required to be uncharacterized. The Board found insufficient evidence of in-service mitigating factors that would support changing her character of service. Based on a preponderance of evidence, the Board determined the fact that the applicant's service was uncharacterized was not in error or unjust. 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 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 the administrative separation of enlisted personnel. 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 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). A separation is an entry level status separation with uncharacterized service if processing is initiated while the Soldier is in an entry level status (i.e. the first 180 days of continuous active duty). The Secretary of the Army could, on a case-by-case basis, issue an honorable character of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. d. Chapter 11 (Entry Level Status Performance and Conduct) provided that entry level Soldiers were to be separated when they demonstrated unsatisfactory performance and/or conduct, as evidenced by an inability, a lack of reasonable effort, or a failure to adapt to the military environment. Separations under this chapter were required to be listed as uncharacterized. 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 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) AR20180005951 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005951 5 ABCMR Record of Proceedings (cont) AR20180005951 4