BOARD DATE: 24 November 2020 DOCKET NUMBER: AR20180015452 APPLICANT REQUESTS: The applicant requests an upgrade of his uncharacterized discharge to an honorable or general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Letter, dated 23 October 2018 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 the discharge is unjust because he was injured during training and was discharged because they said that his entrance to the military was void. He proved that he was injured during training and received his VA benefits since then. He would like to receive benefits that come with an honorable discharge and not wrongfully denied the benefit of shopping online at the exchange (Army and Air Force Exchange Service). 3. On 22 January 2002, the applicant enlisted in the Regular Army for a term of 4 years. 4. His record is void of the Entrance Physical Standards Board (EPSBD) proceedings. His record contains: a. DD Form 2808 (Report of Medical Examination) dated 20 November 2001, shows in item 37 (Identifying body marks, scars, and tattoos) were the only item listed as abnormal on the form. The examiner rated each category of his physical profile: P– Physical Capacity or Stamina, U – Upper Extremities, L – Lower Extremities, H – Hearing and Ears, E – Eyes, and S – Psychiatric as number 1. b. DA Form 2-1 (Personnel Qualification Record – Part II), which shows on 13 February 2002, he was discharged from for the Army at Fort Benning, GA. c. DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows on 13 February 2002, he was discharged with an uncharacterized discharge under Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), paragraph 5-11, separation of personnel who did not meet procurement medical fitness standards. He completed 22 days of net active service period. d. Electronic medical records, which show he is 30% (percent) service-connected for Limited Motion of Ankle (20%) and Superficial Scars (10%). One note indicated he had an ankle injury while in training. 5. The applicant provides VA Letter, dated 23 October 2018, which indicates the applicant has one or more service-connected disabilities evaluated at 30% (percent). The letter did not disclose the nature of the disabilities. 6. The applicant states the discharge is unjust because he was injured during training and he proved it. He has received VA benefits since then. He would like to receive benefits that come with an honorable discharge and not to be wrongfully denied. His records show he was discharged under AR 635-200, paragraph 5-11 with an uncharacterized discharge. He served 22 days of his 4-year contractual obligation. His record is void of EPSBD proceedings. VA records show he is 30% service connected. 7. 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. 8. AR 635-200, in effect at the time, stated commanders were to separate Soldiers who were not medically qualified under procurement medical fitness standards when they enlisted. a. EPSBD proceedings were required to be convened within the Soldier's first 6 months of active duty service, and had to establish the following: that medical authority had identified the disqualifying medical condition(s) within 6 months of the Soldier's initial entry on active duty; that the condition(s) would have permanently disqualified the Soldier from entry into military service, had they been detected earlier; and that the medical condition did not disqualify him/her for retention in military service. A Soldier disqualified under this provision could request retention on active duty; the separation authority made the final determination. b. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. The Secretary of the Army could, on a case-by-case basis, issue an honorable character of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. 9. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. 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, his record and length of service, the absence of a separation packet and the reason for his separation. The Board found that the applicant was in an entry-level status at the time of his separation. The Board considered the VA documents and service connected percentage of disability. The Board found insufficient evidence to support the applicant’s claim that his condition did not exist prior to service. Based on a preponderance of evidence, the Board determined 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 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. 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, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. An uncharacterized discharge was a separation from the Army in an entry level status. Entry-level status is when the separation processing is initiated during the Soldier's first 180 days of continuous active duty. The Secretary of the Army could, on a case-by-case basis, issue an honorable character of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. d. Paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment were to be separated. EPSBD proceedings were required to be convened within the Soldier's first 6 months of active duty service, and had to establish the following: that medical authority identified the disqualifying medical condition(s) within 6 months of the Soldier's initial entrance on active duty; that the condition(s) would have permanently disqualified the Soldier from entry into military service, had it been detected earlier; and that the medical condition did not disqualify him/her for retention in military service. A Soldier disqualified under this provision could request retention on active duty; the separation authority made the final determination. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 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. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015452 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180015452 6 ABCMR Record of Proceedings (cont) AR20180015452 4