ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20180013263 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) 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 unjust because his platoon sergeant was physically abusive during his training, which resulted in his actions that lead to his unfavorable discharge. 3. Review of the applicant's service records show: a. He enlisted in the Regular Army on 23 June 1988. b. On 29 September 1988, applicant received an Student Disposition Form recommending an administrative elimination from the course due to academic dishonesty. The applicant was a newstart from PASC 059-88 to PASC 062-88, due to two time failure on Pay Related Documents. He was given the opportunity to receive the entire block of instruction again. On 22 Sep 88, he was given his third test to receive a passing score on pay related documents. While taking the exam it was detected that he was talking to another student during the exam which is forbidden. This is definitely not in keeping with course standards. It was recommend that Soldier be eliminated from the course and the Army. c. On 19 October 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 11 of a. Army Regulation (AR) 635-200 (Personnel Separation), entry level separation for academic dishonesty, pattern of misconduct and inability to adapt to military lifestyle d. On 20 October 1988, the applicant 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 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 * did not request a separation physical e. On 22 October 1988, the separation authority approved the discharge action and ordered the applicant separated with an entry level separation. f. The applicant was discharged from active duty on 26 October 1988 under the provisions of chapter 11 of AR 635-200. His DD Form 214 shows he received an uncharacterized discharge due to entry level status performance and conduct. He completed 4 months and 4 days of active service. 4. 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. 5. 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. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, the reason for his separation and that it was initiated within the first 180 days of military service. Based on a preponderance of evidence, the Board concluded there was insufficient evidence of an error or injustice which warranted making a change to 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. 5/28/2019 X CHAIRPERSON Signed by: 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, 1. 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.