IN THE CASE OF: BOARD DATE: 6 December 2019 DOCKET NUMBER: AR20180007757 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service was characterized as either under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 28 April 2018, with self-authored statement * an extract of his high school progress report, dated 1 February 1990 * consulting radiologist letter from Long Island Medical Service, dated 3 October 1995, regarding his Magnetic Resonance Imaging (MRI) results * neuro-radiologist letter from Brooke Medical Imaging, dated 13 November 1995, regarding his MRI results * letter from his Member of Congress, dated 22 September 1998, congratulating him for joining the U.S. Army * notification of separation procedures, dated 28 September 1998 * formal recommendation for separation, dated 28 September 1998 * response letter from his Member of Congress to his spouse, dated 5 October 1998 * Separation Authority’s approval memorandum, dated 13 October 1998 * response letter from the New York State Assembly, dated 26 October 1998 * response letter from the New York State Senate, dated 26 October 1998 * response letter from his Member of Congress, dated 27 October 1998 * response letters from his U.S. Senators, dated 28 October and 29 October 1998 * DD Form 214, for the period ending 28 October 1998 (Member 1 and 4 copies) * response letter from the New York State Senate, dated 29 October 1998 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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: a. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides in pertinent part, that a Soldier is in an entry-level status for the first 180 days of continuous active duty. The purpose of the entry-level status is to provide the Soldier a probationary period. Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status. b. He was not released from the Army for any of the following reasons according to Army regulation 635-200: lack of motivation, adaptability, self-discipline, ability or attitude. In September of 1995, he was involved in a car accident, while he was a passenger in a car that was rear ended. According to the MRI report dated 3 October 1995, an MRI was performed on 2 October 1995 on his cervical spine. According to this report, paragraph 4: "The intervertebral discs are maintained in height. There is no evidence of disc desiccation, bulging or herniation." His back was in good shape, with no problems, at that time. A chiropractor sent him for another MRI on 9 November 1995, this report dated 13 November 1995 concluded: "Central Disc Herniation, L5-S1 congenital Stenosis. c. Two years went by, and he did not have any issues with his back. He went to the recruiter but was denied entry into the Navy (as well as the Air Force) because he had too many dependents. He was in Junior Reserve Officer Training Corps (ROTC) in 1984, as demonstrated by his high school progress report. His intentions were to join the military after high school but his parents wanted him to experience life first, 10 years passed quickly and he got married in 1995. After working odd jobs and not being able to care for his family, he joined the military. His wife was behind him 100%, since they both came from military backgrounds. He went through the Military Entrance Processing Station (MEPS) and mentioned his accident to the doctor. He performed all the required physical abilities, including medical, his back was in great shape, keeping in mind he had not had any issues for 2 years. He joined the military in "GOOD FAITH" to better his and his family’s life, and wanted to serve his great country. d. His basic training was at Fort Benning, GA. During the second month, he somehow pulled his back during an exercise. The pain was bad, he went to medical, and the doctor asked if he had any prior injuries. He explained the previous accident, and was informed he would be discharged after they received his MRI reports. He was devastated. His wife wrote several members of Congress as shown above, to see if they could help him stay in. This produced negative results. e. General (Under Honorable Conditions). If a Service member's service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when the positive aspects of the Service member's conduct or performance of duty outweigh negative aspects of the Service member's conduct or performance of duty as documented in their service record. f. Honorable: "Erroneous Enlistment." A member may be separated on the basis of an erroneous enlistment, induction, or extension of enlistment. An enlistment, induction, or extension of enlistment is erroneous in the following circumstance, if: (1) It would not have occurred had the relevant facts been known by the government or had appropriate directives been followed; (2) It was not the result of fraudulent conduct on the part of the member; and (3) The defect is unchanged in material respects. Erroneous Enlistment Discharges are NORMALLY characterized as honorable discharges. g. Question #8, Section B: It's been over 20 years since he reviewed his military paperwork. He never signed his DD Form 214; he was shipped home and when he received his DD Form 214 in the mail, he put it away and forgot about it. He is 50 years old now. He never tried to re-enlist and he is now too old join the military. To this day, he regrets not fighting more to stay in the military. He knows he would have been a great Soldier. He is now in law enforcement and protects and serves our military men and women of the Armed Forces. His son was young when he left for the military, he recently joined the Navy and is serving in Japan. h. He implores the Board to review his circumstances and to keep in mind he was not drafted or forced to enlist. He joined the military to experience the life and the reward of serving his Country. Unfortunately, his injury was aggravated, which was out of his control. He did not know when he enlisted that his injury would get him put out, or keep him from performing in the military. He was young and he wanted to do what was right for himself and his family. 3. In preparation for enlistment in the Regular Army, the applicant underwent an initial entry examination on 29 June 1998. The examining physician did not note the applicant listed any previous back injuries. He was found qualified for enlistment on 30 June 1998. 4. The applicant enlisted in the Regular Army on 25 August 1998. 5. The applicant’s immediate commander notified the applicant on 28 September 1998 that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personal Separations – Enlisted Personnel), Chapter 7, paragraph 7-15a, by reason of erroneous enlistment. The commander cited, as reason for his proposed action, the applicant's concealment of the fact that he had been treated for a medical defect (back injury), and did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). If this information had been known at the time of enlistment, he would have been disqualified from entering the Army. 6. The applicant acknowledged the commander’s intent and waived his right to legal counsel on 28 September 1998. a. He was advised on the basis for the contemplated separation for erroneous entry under Army Regulation 635-200, Chapter 7, and its effects; of the rights available to him; and the effect on his rights. He understood that he did not have six years of total active and reserve military service at the time of separation and was not entitled to have his case heard by administrative separation board unless he was being considered for discharge under other than honorable conditions. b. He was further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. c. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 7. The applicant’s commander formerly recommended his separation on 28 September 1998. The separation authority approved the recommended action on 13 October 1998, under the provisions of Army Regulation 635-200, Chapter 7, and directed the applicant's service be uncharacterized. 8. The applicant was discharged on 27 October 1998, under the provisions of Army Regulation 635-200, Chapter 7, by reason of an erroneous entry. The DD Form 214 he was issued shows he completed 1 month and 24 days of net active service and was not awarded a military occupational specialty. His service was uncharacterized. 9. The service of Soldiers discharged in an entry-level status will be uncharacterized except when characterization under other than honorable conditions is authorized or when the honorable characterization is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time of his separation. 10. The applicant provides the following documentation, for consideration in his case: * A partial copy of his high school progress report * Long Island Medical Service, consulting radiologist; and Brooke Medical Imaging, neuro-radiologist letters showing his MRI results as listed above * Congressman, congratulations letter for joining the U.S. Army * Separation documents * Congressman, response letter to the applicant’s spouse, requesting the applicant release from the Army * NY State Assembly and NY State Senate, response letters to the applicant * Congressman, response letter to the applicant, dated 27 October 1998 * U.S. Senate, response letters dated 28 October 1998, and 29 October 1998 * NY State Senate, response letter to the applicant, dated 29 October 1998 BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, and evidence in the records. The Board agreed that the applicant's discharge for an erroneous enlistment based on his medical history was proper and equitable. Because he was discharged while he was in an entry-level status, his service was uncharacterized. Based on a preponderance of the evidence, the Board determined that the fact that the applicant's service was uncharacterized is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 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 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. It provided that the DD Form 214 was a summary of a Soldier's most recent period of continuous active duty, to include attendance at basic and advanced training, and was prepared for all personnel at the time of their retirement, discharge, or release from active duty. 3. Army Regulation 635-200, in effect at the time, sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. Paragraph 3-7a provides that 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. c. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. A separation is to be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status, except in the following circumstances: (1) When characterization Under Other Than Honorable Conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (b) 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. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government and Secretarial plenary authority. e. Chapter 7 provides for the separation of personnel because of erroneous enlistments. An enlistment is considered erroneous if it would not have occurred had the relevant facts been known, and it was not the result of fraudulent conduct on the part of the Soldier, and the defect is unchanged in material respects. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007757 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180007757 7 ABCMR Record of Proceedings (cont) AR20180007757 6