ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20180011189 APPLICANT REQUESTS: an upgrade of his uncharacterized discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Honorable Discharge Certificate 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, in effect, he was issued an honorable discharge certificate; however, his DD Form 214 reflects uncharacterized. 3. The applicant provides a copy of his honorable discharge certificate that reflects he was honorably discharged from the Army on 21 February 1990. 4. A review of the applicant's service record shows: a. He entered the Army on 22 February 1984. b. DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), reflect the following: (1) On 2 May 1984, a physical examination was conducted by two Medical Corps Services officers, a podiatrist and an orthopedic specialist, of the applicant's feet. It was determined that the discomfort on palpitation of the metatarsal shafts 1, 2, 3, and 4 on the right, 2, 3, 4, and 5 on the left were present prior to him entering the Army. It was recommended the service member is unfit for enlistment in accordance with Army (1) Regulation 40-501, paragraphs 2-10b (7 and 8), 2-10(9), and 2-10d(1). Discharge was recommended for these existing prior to service (EPTS) conditions. (2) On 14 May 1984, the Chief, Department of Surgery approved the findings. (3) On 21 May 1984, the applicant was informed of the medical findings. He indicated that he understood that legal advice of an attorney employed by the Army is available to him or that he may consult civilian counsel at his own expense. He also indicated that he understood that he may request to be discharged from the Army without delay or to request retention on active duty. The applicant concurred with the proceedings and requested to be discharged from the U.S. Army without delay. (4) On 21 May 1984, the applicant's commander recommended the service member be discharges/separated. (5) On 23 May 1984, the separation approving authority directed the service member be discharged/separated from the Army. c. His DD Form 214 reflects he was discharged on 16 April 1991, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 5-11, for not meeting procurement medical fitness standard no disability, with a characterization of service of uncharacterized. He completed 3 months and 4 days of active service. His DD Form 214 also shows in: * Item 23 (Type of Separation) - Discharge * Item 26 (Separation Code) – LFT * Item 27 (Reentry Code) - 3 * Item 28 (Narrative Reason for Separation) - Did Not Meet Procurement Medical Fitness Standard - No Disability 5. AR 635-200 provides that when a commander determines 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 entrance on active duty, active duty training, or initial entry training will be separated. 6. AR 635-200 states, 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. 7. AR 40-501 establishes the medical conditions and physical defects which are causes for rejection for appointment, enlistment, and induction for military service in peacetime. 1. 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 injury being found to be present prior to the Army and the applicant’s separation being initiated within the first 180 days of military service, the Board concluded there was no error or injustice which would warrant changing the characterization of service. 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 (AR) 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 3-7a(1) provides that only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty (AD) or active duty training (ADT) or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. c. Paragraph 5-11 states 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 entrance on active duty, active duty training, or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and that the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status. d. Entry-level status is defined as, for Regular Army Soldiers, the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 2. 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.