ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20180014252 APPLICANT REQUESTS: The applicant requests: * upgrade of his uncharacterized discharge * upgrade of his Reentry (RE) code * personal appearance before the board 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 a. He believes the Army allowed him to slip through the cracks. He also believes the Army knew they made a mistake with him and they wrapped the idea of a "medical discharge" into a package and presented it to him. He was 19 years old, he had no guidance in a room full of officers and did not understand what was really going on. He believes he was lied to. He is 37 years old and all he wants to do is to make right what went wrong 18 years ago. He has dreamed of serving and he believes he never received his fair chance. He would like for these two items to be upgraded so he can finally serve his country and put to bed all the shame and regret he has carried for 18 years over an incident where he believes he was wronged. b. He recently looked into reenlisting and fulfilling his dream of commitment to his country. He was then counseled by a recruiter and then a Department of Veterans Affairs (VA) representative of what his DD Form 214 (Certificate of Release or Discharge from Active Duty) is saying and he is not happy about it. (sentence illegible). He is in the process of retrieving his medical records from his time at the Irish Community Hospital at Fort Knox, KY through the National Archives to provide information as to where he believes his situation went wrong. 3. On 21 August 2000, at the age of 18 years old, he enlisted in the Regular Army for a term of 4 years. 4. The applicant's record is void of a separation packet. His record shows: a. His entrance medical examination, Standard Form 88, dated 15 June 1999, Clinical Evaluation section revealed the applicant had abnormalities with: * Item 28 (lungs and chest) * Item 36 (feet) * Item 39 (identifying body marks, scars, tattoos) * Item 40 (skin lymphatics) * Notes. (Describe every abnormality in detail, Enter pertinent item number before each comment): * Item 28B,Gynecomastia (benign disorder of the male breast tissue) * Item 36, Pes Planus (flat feet), moderate asymptomatic * Item 39, ENC’ to left shoulder * Item 40 (illegible) b. On 7 December 2000, he was discharged. His service was characterized as uncharacterized. He completed 3 months and 17 days of net active service this period. His DD Form 214 shows: * Item 11 (Primary Specialty): None * Item 25 (Separation Authority): Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11 * Item 26 (Separation Code): "JFW" * Item 27 (Reentry Code): "3" * Item 28 (Narrative Reason for Separation): Failure to Meet Medical Fitness Standards 5. The applicant states he believes the Army allowed him to slip through the cracks. He also believes the Army knew they made a mistake with him and they wrapped the idea of a "medical discharge" into a package and presented it to him. He was 19 years old, he had no guidance in a room full of officers and did not understand what was really going on. He believes he was lied to. His record shows he enlisted at the age of 18 years and at the time of his enlistment, his medical examination revealed various abnormalities. He served 3 months and 17 days of his 48 months contractual obligation. 6. AR 635-200, paragraph 5-11 provided Soldiers who were not medically accepted for enlistment, or who became medically disqualified under these standards prior to entry on AD or ADT for initial entry training, will be separated. 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 (AD) or active duty for training (ADT) or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. Entry-level status for Regular Army is 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. A Soldier separated under this section will be awarded a character of service of honorable, under honorable conditions, or uncharacterized if in entry level status. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry level status, except under certain circumstances. 7. AR 635-5-1 (Separation Program Designator (SPD) Codes) stated the reason for discharge based on separation code "JFW" is "Failure to Meet Procurement Medical Fitness Standards" and the regulatory authority is AR 635-200, paragraph 5-11. 8. AR 601-210 (Regular Army and Army Reserve Enlistment Program), chapter 3 prescribed basic eligibility for prior service applicants for enlistment, which included a list of Armed Forces RE codes. * RE-4 applies to persons separated from their last period of service with a non- waivable disqualification * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated 9. The Separation Program Designator Code/Reentry Code Cross Reference Table shows that when the Separation Program Designator is "JFW" then an RE code of 3 will be assigned. 10. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. In regards to the applicant's request for a personal appearance, AR 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 11. 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. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the length of his service, the entrance medical documents and the reason for his separation. The Board found no evidence to show that he met medical fitness standards at the time of his separation and the applicant provided none. Based on a preponderance of evidence, the Board determined that the character of service the applicant received a separation was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided 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. 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 AD (active duty) or ADT (active duty for training) or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. b. Paragraph 3-9 provided a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry level status, except in the following circumstances: (1) When characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) 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. c. Paragraph 5-11 (separation of personnel who did not meet procurement medical fitness standards) provided: (1) Soldiers who were not medically accepted for enlistment, or who became medically disqualified under these standards prior to entry on AD or 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 six months of the Soldier’s initial entrance on AD for RA, or during ADT for initial entry training for Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR), which—(a) 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. (b) Does not disqualify him or her for retention in the military service under the provisions of AR 40–501 (Medical Services – Standards of Medical Fitness), chapter 3. (2) As an exception, a Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained in the Service with the exception of existed prior to service (EPTS) pregnancies. (3) A Soldier separated under this section will be awarded a character of service of honorable, under honorable conditions, or uncharacterized if in entry level status. d. Glossary defines entry-level status for Regular Army Soldiers, is 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. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (regulatory or other directives), reasons for separating soldiers from active duty, and the separation program designator (SPD) codes to be entered on DD Form 214. It stated the reason for discharge based on separation code "JFW" is "Failure to Meet Procurement Medical Fitness Standards" and the regulatory authority is AR 635-200, paragraph 5-11. 4. AR 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, prescribed eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and the U.S. Army Reserve. Chapter 3 prescribed basic eligibility for prior service applicants for enlistment, which included a list of Armed Forces RE codes. * RE-4 applies to persons separated from their last period of service with a non- waivable disqualification * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated 5. The Separation Program Designator Code/Reentry Code Cross Reference Table shows that when the Separation Program Designator is "JFW" then an RE code of 3 will be assigned. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 7. 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. ABCMR Record of Proceedings (cont) AR20180014252 8 1