ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20180009031


APPLICANT REQUESTS: his general discharge be upgraded to an honorable discharge.

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 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 this is the first time inquiring about the upgrade.  He would like to get his medical and GI Bill benefits.  

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

a.  He enlisted in the United States Army Reserve (USAR) on 24 July 1991.

b.  On 31 July 1991, Orders 146-23 issued by the Military Entrance Processing
Station (MEPS), Oakland, CA, shows he was ordered to active duty for his initial active duty for training (IADT).  His report date was 24 June 1992.

c.  On 19 August 1992, the U. S. Army Recruiting Battalion Sacramento, in Rancho
Cordova, CA, returned his MEPS enlistment packet to his unit, 820th Engineer Battalion, Company D, Combat, at the USAR Center in Sacramento, CA.  The applicant was determined to be medically disqualified or overweight in accordance with Army Regulation (AR) 601-210 (Personnel Procurement – Regular Army and Army Reserve Enlistment Program), and must be processed for discharge per AR 135-178 (Separation of Enlisted Personnel), paragraph 4-7a (Discharge of Soldiers who did not medical fitness standards).  The memo is faintly annotated with “tonsillitis and did not ship”. 


d.  On 10 December 1992, the applicant’s immediate commander notified the
applicant on the initiating action for separation under the provisions of AR 135-178, (Separation of Enlisted personnel – Army National Guard and Army Reserve), paragraph 4-7 (Discharge of Soldiers who did not meet the medical fitness standards) due to medical disqualification.  He notified the applicant of his right to present any rebuttal, statements, or waive his rights at the next monthly assembly on 9 January 1993, and that he will receive an entry level separation if separated under this program.  His acknowledgment of the letter was required by 21 December 1992.

e.  The applicant’s record is void of his acknowledgment of receiving the letter.

     f.  On 28 January 1993 a recommended for approval on DA Form 4651-R (Request for Reserve Component Assignment or Attachment) shows a modified item 4 (Action) for discharge due to inactivation of his unit per U.S. Army Reserve Command.  It also shows a modified item 4e (Authority and Reason) from an entry level discharge to a medical discharge (handwritten) under AR 135-178, Chapter 4-7.

g.  On 29 January 1993, the deputy chief of staff for personnel, Headquarters, 124th
USAR Command, Fort Lawton, WA submitted a request for discharge packet to the Commander, USAR Command (USARC), located in Atlanta, GA.  The applicant’s record is void of the enclosures submitted within the packet.

h.  Orders 089-007, published by the USARC, Fort McPherson, GA, on
5 February 1993, show the applicant was issued an uncharacterized discharge effective date of 5 February 1993 by authority AR 135-178.

4.  By regulation, AR 135-178 commanders who are separation authorities are authorized to discharge Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who become medically disqualified under these standards prior to entry on IADT.

5.  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 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; he does not have a General character of service.

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.  AR 135-178 (Separation of Enlisted personnel – Army National Guard and Army Reserve) establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Army National Guard of the United States and the USAR.  

a.  Paragraph 1-17 (Types of characterization or description) provides that the
characterization of service, as a result of an administrative action, is governed by this regulation.  The types of separation, as they affect characterization or description, shows an uncharacterized description of service is issued for entry level separations.

b.  Paragraph 1-18 (Characterizations of service) provides 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.

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)	 AR20180009031


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