IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20180014993 APPLICANT REQUESTS: The applicant 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) * DD Form 214 (Certification Release of Discharge) 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 that he understood that after 6 months after his separation from the Army, his discharge would be upgraded to honorable. 3. A review of his records shows that he enlisted in the Army on 5 March 1993 for 4 years. On 9 March 1993, he was assigned to Basic Training at Fort Sill Oklahoma. 4. On 26 April 1993, the applicant's immediate commander notified him he was initiating action to discharge him from the Army prior to the expiration of his current term of service under the provisions of Army Regulation 635-200, chapter 11 for unsatisfactory performance. The specific reason for his proposed action was the applicant’s inability to qualify with his assigned M16 rifle. His best score was 20/40 after 9 attempts. The Army standard is 23/40 to pass. His service would be uncharacterized. 5. The applicant acknowledged the commander’s intent to discharge him, his available rights and spoke with legal counsel. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits. 6. On 17 May 1993, the appropriate separation authority approved the separation issuing the applicant an uncharacterized discharge and waived rehabilitation according to AR 635-200 Para 1-18. 7. On 28 May 1993, he was discharged accordingly, his service was uncharacterized for entry level separation. His DD 214 shows he completed 2 months and 24 days of net active service. Of note, box 18, remarks, states that the applicant was in Delayed Entry Program (DEP) from 29 January 1993 to 4 March 1993, and this data is subject to computer matching with other agencies for verification purposes and determining eligibility or compliance for Federal Benefits. 8. Army Regulation 635-200, chapter 11, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) 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 under this chapter. 9. The applicant’s records shows that he served 2 months and 24 days of a 4 year contract. He was unable to qualify with his assigned weapon after 9 attempts and the immediate commander chaptered him out of service in accordance with AR 635-200, chapter 11. 10. The applicant states he was made to understand he would receive an automatic upgrade after six months. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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, U.S. Code, 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 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, chapter 11, in effect at the time, set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status. a. Paragraph 11-3a stated separation was warranted when unsatisfactory performance or minor disciplinary infractions was evidenced by inability, lack of reasonable effort or failure to adapt to the military environment. The policy applied to members who were in an entry level status and, before the date of the initiation of separation action, had completed no more than 180 days of continuous active duty, could not or would not adapt socially or emotionally to military life, had demonstrated character and behavior characteristics not compatible with satisfactory continued service and had failed to respond to counseling. b. 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 under this chapter. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20180014993 5 ABCMR Record of Proceedings (cont) AR20180014993 4