ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180010749 APPLICANT REQUESTS: an upgrade to his uncharacterized discharge to a general 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 he tried to serve as his father and grandfather before him. Also, he was not healthy enough to get through all the test to go in the Army. He feels he inherited his father’s health issues he suffered during Agent Orange. 3. The applicant’s service record shows: a. He enlisted in the Regular Army on 24 July 1990. He was assigned to Alpha Company, 6th Battalion, 10th Infantry 3rd Basic Training Brigade, Fort Leonard Wood, MO from 3 August 1990 to 24 September 1990. b. The Entrance Physical Standard Board (EPSBD) Proceedings completed on 10 September 1990 at the medical treatment facility at Fort Leonard Wood, MO shows that his chief complaint was shortness of breath, chest pains and acute bronchospasms. The lab results shows he was diagnosed with bronchial asthma, acute, and season allergic rhinitis. The examiner recommended under the provision of AR 40-501 (Standards of Medical Fitness – Medical Services), paragraph 2-24 that the applicant was unfit for entry into active duty. He recommend separation for the diagnosis of mild bronchial asthma. c. The applicant on 18 September 1990, was informed of the medical findings and understood that legal advice of an attorney employed by the Army was available or he could have consulted with civilian counsel at his own expense. He concurred with the proceedings and requested to be discharge from the Army without delay. d. His immediate commander recommended that the he be discharged on 18 September 1990. He had not completed 8 weeks of basic training. e. On 19 September 1990, the separation authority, approved the applicant’s discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5-11, he did not meet procurement medical fitness standards. f. He was discharged on 24 September 1990. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 5-11, SPN: JFT unqualified for active duty – other, he did not meet procurement medical fitness standards no disability. His characterization is uncharacterized. He had 2 months and 1 day of net active service this period with no lost time. 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 states that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Paragraph 3-9 states 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. Paragraph 4-4, characterization of service states that a Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry level status and service is uncharacterized. 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 documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the applicant’s separation being initiated within the first 180 days of active duty service and the regulatory guidance on the matter, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization 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 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b 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, or a characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. It will not be issued to Soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 3-9, states for entry level status separation. A separation will 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: * when characterization Under Other Than Honorable Conditions is authorized under the reason for separation and is warranted by the circumstances of the Case * 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 d. Paragraph 5-11a, states that Soldiers who were not medically qualified under, procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty (AD) or active duty for training (ADT) for initial entry training, will be separated. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier's initial entrance on AD for Regular Army (RA), or during ADT for initial entry training for Army National Guard (NG) and Army Reserves (USAR), which: * would have permanently or temporarily disqualified him or her for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time * does not disqualify him or her for retention in the military service under the provisions of AR 40-501, Chapter 3 3. AR 40-501 (Standards of Medical Fitness – Medical Services) gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. Chapter 3, Disposition of Soldiers who may be unfit because of physical disability. Paragraph 3-4e states Soldiers on active duty who meet retention medical fitness standards but who failed to meet procurement medical fitness standards on initial entry into the service (erroneous appointment, enlistment, or induction) may be processed for separation as provided in AR 635-200. 4. 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. ABCMR Record of Proceedings (cont) AR20180010749 4 1