ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180008032 APPLICANT REQUESTS: an upgrade of his discharge to general under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal From The Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge From Active Duty) * Self-Authored statement for name change, dated 9 May 2018 * Sussex County Virginia Order for Change of Name, dated 13 June 2012 * Maryland Department of Transportation Identification Card, dated 4 May 2018 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 his discharge was given out of retaliation. Also, due to this type of discharge, he is unable to apply for Veteran Administration (VA) healthcare or any additional benefits. He requests to change the character of service on his DD Form 214 from uncharacterized to either honorable or general under honorable conditions. 3. The applicant provides a self-authored statement which reflects his legal name change to Shiva Bhairava, address and phone number. 4. A review of the applicant’s service records shows: a. He enlisted in the Army Reserve on 29 July 2002. b. He entered active duty for basic training and Advanced Individual Training on 14 August 2002. c. He was discharged on 10 February 2003 under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). d. His DD Form 214 shows the narrative reason for separation as entry level performance and conduct with the characterization of service listed as uncharacterized. Also, his DD Form 214 shows he completed 5 months and 27 days of active service. 5. By regulation, separation of a soldier in entry level status may be warranted on the grounds of unsatisfactory performance and/or unsatisfactory conduct. The Army considers entry level status as before the date of the initiation of separation action and have completed no more than 180 days of creditable continuous active service. Service will be described as uncharacterized under the provisions of this chapter. 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 documetns, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the applicant being a USAR Soldier who completed all active duty training requirements, as well as the new policy related to USAR and National Guard Soldier’s DD Form 214, the Board concluded that upgrading the characterization of service to Honorable was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. a. Paragraph 3-7a (Honorable Discharge) is a separation with honor. 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 (General Discharge) 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. Paragraph 11-3 establishes policy for entry level status and states it applies to Soldiers who have completed no more than 180 days of creditable continuous active service. d. The entry level separation is given regardless of reason for separation. An uncharacterized discharge is neither positive nor negative; it is not “derogatory.” An uncharacterized character of service is not meant to be a negative refection of a Soldier’s military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20180008032 3 1