ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180016554 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service is characterized as honorable in lieu of “uncharacterized.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Orders 250-0166, Headquarters U.S. Army Armor Center, Fort Knox, KY * DD Form 2448 (Preseparation Counseling Check List) 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 his discharge is keeping him from finishing his term of service. During basic training he started having breathing problems and he was diagnosed as having developed asthma during training that was severe enough that he was no longer fit to complete training. His characterization of service prohibits him from obtaining benefits and he is not recognized as a veteran. He requests that his service be characterized as honorable so that he may seek Department of Veterans Affairs (VA) Healthcare and other benefits. 3. On 3 August 2000, the applicant enlisted in the Regular Army for 3 years and for military occupational specialty 19K (Armor Crewman). 4. The complete facts and circumstances surrounding the applicant’s discharge are not available for review with this case. However, the applicant was discharged on 8 September 2000. The DD Form 214 he was issued at the time shows he was discharged under the provisions of AR 635-200 (Enlisted Personnel), paragraph 5-11. The narrative reason for separation shows "Failure to Meet Procurement Medical Fitness Standards" and his service was uncharacterized. He completed 1 month and 6 days of active service. 5. The applicant provides orders assigning him to the U.S. Army Transition Point, Fort Knox, KY, for separation processing with a discharge date of 8 September 2000. He also provides a counseling checklist that shows he was counseled concerning various services and benefits that may or may not have been available to him as a result of his discharge. 6. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, provides, in pertinent part, that if a Soldier is processed for failure to meet procurement medical fitness standards within the first 6 months of entry on active duty and the condition existed prior to the term of service, then the Soldier will be discharged in an entry level status with uncharacterized service. 7. The applicant requests his discharge be upgraded to show his service was honorable in lieu of uncharacterized so that he may be eligible for VA benefits. His record is void of specific details surrounding his discharge; however, based on his own admission to the Board, he was diagnosed as having asthma that failed to meet procurement medical fitness standards. 8. He served in an active duty status approximately 36 days, which was not long enough for his service to be rated. The characterization of service he received was in compliance with the governing regulation. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. 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, 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 sets forth the basic authority for separation of enlisted personnel. a. Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated. A medical proceeding conducted by an Entrance Physical Standards Board, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of AR 40-501, chapter 3. 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 duty service prior to the initiation of separation action. b. An uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized by the reason for separation and is warranted by the circumstances of the case or when 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. c. Paragraph 3-7a states 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. 3. AR 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion they must have existed or have started before the individual entered military service. Examples are manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service. 4. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides the physical standards for enlistment/induction. This chapter prescribes the medical conditions and physical defects that are causes for rejection for appointment, enlistment, and induction into military service. Unless otherwise stipulated, the conditions listed in this chapter are those that would be disqualifying by virtue of current diagnosis, or for which the candidate has a verified past medical history. Other standards may be prescribed by Depart of Defense in the event of mobilization or a national emergency. 5. 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. //NOTHING FOLLOWS//