BOARD DATE: 17 April 2020 DOCKET NUMBER: AR20180014474 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from “uncharacterized” to honorable and change his narrative reason for separation to “Disability, Severance Pay.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 4856 (Developmental Counseling Form) * Department of Veterans Affairs (VA) Rating Decision 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 suffered a stress fracture of his right tibia during initial entry training (IET) that untimely resulted in his discharge from the Army. The injuries were clearly service-connected, yet his service was uncharacterized and his narrative reason for separation is listed as a “Condition, Not a Disability.” He believes a drill sergeant, who had a personal problem with him facilitated this outcome by claiming he lacked motivation. a. He also believes this was done to him out of malice, despite the fact that he was making every attempt to recover and heal from his injury. b. He wanted to join the Special Forces, remain in the Army, and make the Army a career. He completed or attempted to complete every task he was assigned, often while being on crutches in full uniform and in combat gear. Therefore, the "lack of motivation" assessment was unwarranted. c. On 21 April 2004, was awarded a 10% disability rating by the VA for his right tibial stress fracture. 3. On 21 November 2002, he enlisted in the United States Army Reserve (USAR) for 8 years. He was discharged from the USAR and enlisted in the Regular Army on 4 March 2003, for 3 years, and he was assigned to Fort Benning, GA, for completion of initial entry training. 4. The complete facts and circumstances surrounding the applicant’s discharge are not available for review with this case. However, he provides a Developmental Counseling Form showing, on 11 August 2003, Staff Sergeant (SSG) CJP, the Drill Sergeant/ Rehabilitation Noncommissioned Officer (NCO) in Charge counseled the applicant for a lack of motivation. The SSG states: a. The applicant no longer desired to continue his training to become a Soldier due to his medical conditions. “Because of your lack of motivation, I am forced to request that you be released from the Army under Army Regulation (AR) 635-200, chapter 5-17, separation for convenience of the government. While the proper documentation is being processed, you need to ensure that you stay out of trouble to ensure quick and efficient out-processing.” b. I am counseling you for conduct noted above. If this conduct continues, action may be initiated to separate you from the Army under AR 635-200, chapter 14. If you are involuntarily separated UP [under the provisions of] chapter 14, you could receive an honorable discharge, a general discharge (under honorable conditions), or an under other than honorable conditions discharge. An honorable discharge may be awarded under any provision. A general discharge may be awarded for separation UP of chapter 5, chapter 9, chapter 13 and chapter 14. An under other than honorable conditions discharge may be a warded for separation up chapter 14. c. If you receive an honorable discharge, you will be qualified for most benefits resulting from military service. An involuntary honorable discharge, however, will disqualify you from reenlistment for some period of time and may disqualify you from receiving transitional benefits (e.g. commissary, housing, health benefits) and the Montgomery GI Bill. If you receive a general discharge, you will be disqualified from reenlisting in the service for some period of time and you will be ineligible for some benefits, including the Montgomery GI Bill. If you receive an other than honorable conditions discharge, you will be ineligible for reenlistment and for most benefits, including payment for accrued leave, transportation of dependents and household goods to home, transitional benefits, and Montgomery GI Bill. You may also face difficulty in obtaining civilian employment as employers have a low regard for general and under other than honorable conditions discharges. d. Although there are agencies to which you may apply to have the character of your discharge changed, it is unlikely that any such application will be successful. e. The applicant needs to stay out of trouble during the processing of this paperwork, or he could be recommended under AR 635-200, chapter 5-17 [Other Designated Physical or Mental Conditions]. Request that a separation for the convenience of the government may be initiated and he [may] be discharged from the Army immediately. f. The applicant authenticated this document acknowledging that he understood and agreed with the plan of action. 5. The applicant's service records are void of documents pertaining to his discharge, but does include a DD Form 214, which shows, on 23 October 2003, he was discharged. He completed 7 months and 20 days of his 3-year enlistment contract. a. His DD Form 214 also shows in: * Character of Service, Uncharacterized * Separation Authority, “AR 635-200, PARA 5-18” * Narrative Reason for Separation, “Physical Condition, Not a Disability” b. The separation authority should be listed on the DD Form 214 as AR 635-200, paragraph 5-17. c. The DD Form 214 does not show he was awarded a military occupational specialty, or any awards or decorations. 6. Orders 296-2224, Headquarters, U.S. Army Infantry Center, Fort Benning, confirms he was assigned to the U.S. Army Transition Point with a reporting date of 23 October 2003 for separation processing on the same date. 7. AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions), provides commanders with the authority to approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding those personnel who did not meet procurement medical fitness standards and those diagnosed with a personality disorder. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active service prior to the initiation of separation action. 8. He provides a Rating Decision, dated 21 April 2004, showing he was granted a 10 percent service connection for residuals of a right “tibial” stress fracture, effective, 24 October 2003. 9. It appears the applicant’s was discharged under the provisions AR 635-200, paragraph 5-17 and not “paragraph 5-18.” The reason for discharge is correctly listed on his DD Form 214 as "Physical Condition, Not a Disability." However, the separation authority should be listed as, “paragraph 5-17.” 10. The specific circumstance(s) that led to his discharge are not available due to his record being void of a separation packet. He argues that: a. He suffered a stress fracture of his right tibia during IET that resulted in his discharge. The injury was service-connected, yet his service was uncharacterized and his narrative reason for separation is listed as a “Condition, Not a Disability.” b. On 21 April 2004, was awarded a 10% disability rating by the VA for his right tibia stress fracture. c. The "lack of motivation," which is assessed on the above counseling was done out of malice and it was unwarranted. 11. Regarding his contentions: a. Award of a VA service-connected disability rating is not, in and of itself, evidence of an error in an Army decision. The VA makes disability determinations based on its own statutory authority. b. The applicant signed his counseling and acknowledged he agreed with the statements made within. c. The applicant’s service was uncharacterized because his separation action was initiated prior to completion of 180 days of creditable active service. On 11 August 2003, he was counseled concerning the plan to discharge him. He was discharged on 23 October 2003. 12. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant is requesting a change in discharge from Uncharacterized to Honorable due to medical disability with severance pay. The applicant endured a stress fracture of the right tibia during Initial Entry Training. Serial films of right tibia/fibula from 05 May 2003 to 28 Aug 2003 (at least 4 films) show the progression of the healing stress fracture. The 21 April 2004 VA Decision Letter shows 10% service-connected disability rating for right tibial stress fracture. Notes in the letter indicate the examining physician’s impression was that this condition would heal and would not have residual deficit or defect. Post discharge a 20 March 2004 film of the right tibia and fibula was negative. Review of available medical evidence does not show that the right tibial stress fracture is a disabling condition; therefore, recommendation for referral to the Disability Evaluation System for consideration regarding disability severance it not indicated. 13. In reaching its determination, the Board should consider the applicant’s contentions, the VA Rating Decision he provided, and his military service record, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was not warranted. The Board reviewed the application, all evidence, and the reason for his separation. The applicant’s contentions, his record and length of service, and applicable regulatory guidance were carefully considered. In addition, the Board considered his medical records, VA documents provided by the applicant, the review and conclusions of the medical advising official, and published DoD guidance for liberal consideration of discharge upgrade request. The Board concurred with the medical advisory opinion and found him to be in an entry-level status at the time of separation. Based on a preponderance of evidence, the Board determined that the applicant’s character of service at separation was not in error or unjust. 2. 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. 3. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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): A review of the applicant’s record shows his DD Form 214 for the period ending 23 October 2003 contains an incorrect entry that may affect his eligibility for post- service benefits. As a result, amend his DD Form 214, dated 23 October 2003 by: a. Deleting from item 25, the entry “AR 635-200, PARA 5-18.” b. Adding to item 25, the entry “AR 635-200, PARA 5-17.” 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, shows: a Paragraph 5-17, provides commanders with the authority to approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding those personnel who did not meet procurement medical fitness standards and those diagnosed with a personality disorder. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active service prior to the initiation of separation action. b. 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. c. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. d. An Uncharacterized Separation is a separation that was deemed entry-level status when commanders initiated the action while the Soldier was within the first 180 days of continuous active service. Soldiers separated in an entry-level status were issued an uncharacterized character of service. On a case-by-case basis, and when clearly warranted due to unusual circumstances involving personal conduct or duty performance, the Secretary of the Army could grant a Soldier an honorable character of service. 3. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 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 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. 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. 5. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice in the Army not separating the individual for physical unfitness. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014474 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180014474 8 ABCMR Record of Proceedings (cont) AR20180014474 6