IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20180013139 APPLICANT REQUESTS: The applicant requests to change his character of service from entry level status (uncharacterized) to honorable. 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) 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 left the service under honorable conditions. 3. On 16 March 1987, the applicant enlisted in U.S. Army Reserve for 8 years. 4. On 11 August 1987, he was ordered to initial active duty for training (IADT) at Fort Leonard Wood, Missouri. He did not complete training requirements; therefore, was not awarded a military occupational specialty. 5. On 25 September 1987, the applicant fell and injured his hip and back while navigating the physical confidence (obstacle) course. 6. The applicant was examined by a physician and it was determined that he should appear before a Medical Board for possible disability separation or retirement under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 7. On 3 December 1987, a Medical Evaluation Board (MEB) found the applicant's closed fractures of the right transverse processes of L3 and L4, and a closed fracture of the lateral margin of his right acetabulum failed medical retention standards. The MEB recommended referral to a Physical Evaluation Board (PEB). The findings and recommendation of the board were approved and the applicant agreed/concurred with the board’s findings and recommendation on 4 December 2003. 8. The narrative summary for the MEB noted in part, the applicant’s chief complaint was acute low back pain and right hip pain. The applicant stated he fell on the obstacle course on 25 September 1987. He fell approximately 6 to 8 feet incurring immediate onset of pain in his low back and his right hip. X-ray evaluation in the Emergency Room revealed transverse process fractures of the third and fourth lumbar vertebrae and a fracture of the lateral margin of the right acetabulum. 9. On 10 December 1987, an informal PEB found the applicant was unfit for continued military service based on a closed fracture of the right transverse processes and a closed fracture of the lateral margin of the right acetabulum. The PEB awarded him a combined disability rating of 20 percent, and also recommended separation with severance pay. 10. On 14 December 1987, the applicant concurred with the findings and recommendations of the PEB. He waived a formal hearing of his case. He also indicated that he had received a full explanation of the results of the findings and recommendations, and his legal rights pertaining thereto. 11. In January 1988, the appropriate authority reviewed and approved the PEB recommendation. 12. The applicant’s record contains a copy of a message from the Total Army Personnel Command (PERSCOM), dated 18 January 1988, wherein, PERSCOM stated that the applicant would be discharged no later than 15 February 1988, under the provisions of paragraph 4-24e(3), AR 635-40. The PEB recommendation was approved and the applicant was authorized severance pay in the pay grade of private (PVT)/E-1 with a disability rating of 20 percent 13. On 1 February 1988, the applicant was furnished an entry level status (uncharacterized) discharge, under the provisions of AR 635-40, paragraph 4-24e(3), based on physical disability with severance pay. His DD Form 214 shows he completed 5 months and 21 days of net active service. 14. Army Regulation 635-200 provides guidance for the separation of personnel while in an entry level status. Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service. The regulation required an uncharacterized description of service for separation of Soldiers in an entry level status. 15. Army Regulation 635-40, paragraph 4-24 pertains to disposition by PERSCOM upon the final decision of the Physical Disability Agency (PDA). It states that: a. PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USAPDA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations. b. Paragraph 4-24e(3) applies to separation for physical disability with severance pay. 16. Appendix C, paragraph C-10 of AR 635-40 states that a Soldier with less than 6 months service cannot receive severance pay. The soldier may apply to the Department of Veterans Affairs (VA) for disability compensation. 17. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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. 2. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) provides guidance for the separation of personnel while in an entry level status. Entry level status is defined as the first 180 days of continuous active service or the first 180 days of continuous active service after a service break of more than 92 days of active service. The regulation required an uncharacterized description of service for separation of Soldiers in an entry level status. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating. Paragraph 4-24 pertains to disposition by PERSCOM upon the final decision of the Physical Disability Agency (PDA). It states that: a. PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USAPDA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations. b. Subparagraph 4-24e(3) applies to separation for physical disability with severance pay. (See Title 10 U.S. Code 1203 or 1206.) c. Six (6) months or more are considered as a whole year for computing years of service as a multiplier. A member with less than 6 months' service cannot receive severance pay. The member may apply to the Department of Veterans Affairs (VA) for disability compensation. 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. a. 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 on the basis of 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. b. 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) AR20180013139 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180013139 6 ABCMR Record of Proceedings (cont) AR20180013139 4