ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180014752 APPLICANT REQUESTS: reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20140000393 on 9 September 2014. Specifically, he requests his uncharacterized discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Acting Director, Case Management Division, Army Review Boards Agency (ARBA), dated 22 July 2019 * Self-authored statement, dated 30 July 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 4 November 1996 * Six letters from the Department of Veterans Affairs (VA), three dated 28 September 2018 and three dated 30 July 2019 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140000393 on 9 September 2014. 2. The applicant's military records are not available for review. The Board requested a copy of his records from the National Personnel Records Center in St. Louis, Missouri; however, none were located. However, the previous ABCMR case along with the DD Form 214 he provided is sufficient for the Board to conduct a fair and impartial review of his case. 3. The applicant requests an upgrade to his discharge to honorable and stated he was assaulted by a drill sergeant at Fort Benning, GA while he was injured. He has four documents showing he has honorable service (from the VA) but not the DD Form 214. This is inhibiting his ability to get a VA home loan and add "Veteran" to his driver license. 4. The applicant enlisted in the Regular Army on 23 August 1996. He was assigned to Fort Benning, GA, for the purpose of completing military training; however, he did not completed training. 5. A review of his previous ABCMR case shows: a. He was place on a temporary profile for a defective left knee on 23 September 1996 and subsequently, was recommended that he be enrolled in a fitness training unit for the purpose of rehabilitating his left knee. b. He underwent a mental status evaluation on 8 October 1996, wherein the examining social worker determined: (1) He was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings. He was further determined to meet the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). (2) He was also diagnosed with an adjustment disorder due to a general medical condition. In the opinion of the examiner his condition and the problems presented by the applicant were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification into another type of duty within the military. It was unlikely that efforts to rehabilitate or develop him into a satisfactory member of the military would be successful. The applicant was unmotivated to train. (3) He was psychiatrically cleared for any administrative action deemed necessary by his chain of command. (4) The examiner recommended that it would be in the best interest of the Soldier and the Army for him to be expeditiously separated from active duty. He was likely to become/continue as a disruptive influence to unit morale and mission. c. The applicant's commander notified him on 17 October 1996 that he was initiating action to effect his elimination from the Army prior to the expiration of his current term of service under the provisions of paragraph 11-2, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), due to his inability to adapt to a military environment. The specific reasons for the proposed action were the applicant's: * inability to meet standards * failure to adapt to the military * lack of reasonable effort * personal desire for discharge * refusal of medical treatment d. The applicant's commander advised him he had the right to: * consult with military legal counsel or civilian counsel (at his own expense) * submit statements in his own behalf * obtain copies of the documents supporting his separation that would be sent to the separation authority * waive his rights in writing e. The applicant waived his rights and indicated he would not submit a statement in his own behalf. However, on 17 October 1996, the applicant in a sworn statement indicated he no longer desired or wished to be in the Army. He stated he absolved or released the Army from the obligation of correcting his knee injury. He refused an operation at Fort Benning, GA. He would rather have his operation at a later date at home in New York City. He wanted to be separated from the Army and returned home. f. On the same date, he was counseled on his decision to decline an operation on his knee while he was in the Army and that if he were to have the operation elsewhere it would be expensive. He was advised that he would lose all military privileges and the Army would not be responsible for any payments. g. His commander formally recommended his separation from the Army on 18 October 1996, under the provisions of chapter 11 (Entry Level Performance and Conduct) of Army Regulation 635-200. He was further counseled that he may be ineligible for benefits administered by the VA. He was advised that his refusal of medical treatment and a medical review board would prevent him from receiving treatment at Government expense and the opportunity for his records to be reviewed by a medical board prior to discharge to determine if any medical disability was incurred by his injury. In addition his refusal of treatment constituted a refusal to train and was potentially punishable under the Uniform Code of Military Justice. The applicant concurred on the same date. h. The separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, and waived a rehabilitative transfer. 6. The applicant was discharged on 4 November 1996, following completion of 2 months and 12 days of net active service. The DD Form 214 he was issued shows in: * Item 23 (Type of Separation) – Discharge * Item 24 (Character of Service) – Uncharacterized * Item 25 (Separation Authority) – Army Regulation 635-200, chapter 11 * Item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct 7. The applicant's previous case does not contain, nor does he provide, any evidence which shows he was assaulted by a drill sergeant during his period of service. 8. The applicant provides six VA documents, dated 28 September 2018 and 30 July 2019, which shows the VA determined his service as honorable for benefits and awarded him a service-connected disability rating and compensation. 9. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 11 provides that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life. Entry level status is defined as the first 180 days of continuous active duty. It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized. 10. The law allows the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, awards of VA ratings do not establish an error or injustice on the Army. Operating under different laws and its own policies, the VA can determine a Servicemembers' character of service for its own use in determining the different types of VA benefits. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement and assault claim, the record of his service, his medical issues, the frequency and nature of his misconduct, the reason for his separation and his statement at the time, statements regarding VA service connected conditions and whether to apply clemency. The Board found insufficient in-service mitigation for his misconduct and the applicant provided no evidence of post service achievements of letters of reference in support of a clemency determination. The Board determined, based on a preponderance of evidence, that the character of service the applicant received upon separation was not in error or unjust. 2. 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 to amend the decision of the ABCMR set forth in Docket Number AR20140000393 on 9 September 2014. 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 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that a separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service. b. 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. c. Paragraph 3-7b provides that 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. d. Chapter 11 provides that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life. Entry level status is defined as the first 180 days of continuous active duty. It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.