ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180008337


APPLICANT REQUESTS:  an upgrade of his uncharacterized discharge to honorable

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 inequitable because it was based on false accusations.  He was accused of disobeying orders, but not once during his time in service did he disobey an order, even after his injury.  He never let his injury hinder his performance and all of his duties were performed as instructed.  He is requesting an upgrade because it is the right thing to do and his current discharge has a negative impact on his career. 

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 19 January 1994.

	b.  On 9 February 1994, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 11 of Army Regulation (AR) 635-200 (Personnel Separation), because he was diagnosed with an adjustment disorder with physical complaints.

	c.  On 9 February 1994, he acknowledged the separation action from the commander.  He acknowledged his understanding that if the discharge action were approved, he would receive an entry level separation with uncharacterized service.  He further made the following elections:

* he did not desire to consult with counsel
* he did not desire to make statements on her own behalf
* he did not desire to obtain copies of documents that will be sent to the separation authority supporting the proposed separation
* he did not request a separation physical 
* he waived these rights in writing

	d.  Consistent with the chain of command recommendation on 18 February 1994, the separation authority approved the discharge action and issued an Uncharacterized Character of Service Discharge.

	e.  The applicant was discharged from active duty on 28 February 1994 under the provisions of chapter 11 of AR 635-200.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an uncharacterized discharge due to entry level status performance and conduct.  He completed 1 month and 12 days of active service.

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

5.  By regulation (AR 635-200), the Army considers a separation an entry-level separation if processing is initiated while a member is in an entry-level status.  During the first 180 days of continuous active military service, a member's service is under review. 

	a.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other-than-honorable conditions discharge.  A general discharge is not authorized.

	b.  The entry-level separation is given regardless of the 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 reflection 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.

6.  In reaching its determination, the Board can consider the applicants’ petition in her service record in accordance with published equity, injustice, or clemency determination guidance.





BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status.  As such, his DD Form 214 properly shows his service as uncharacterized.

An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request.  

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 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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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 11-1 states this chapter sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.

	d.  Paragraph 11-3 this policy applies to Soldiers who have completed no more than 180 days active duty on current enlistment by the date of separation.  Soldiers who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.

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 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.  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)	 AR20180008337


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