IN THE CASE OF: BOARD DATE: 23 January 2020 DOCKET NUMBER: AR20190002841 APPLICANT REQUESTS: The applicant requests upgrade of his uncharacterized character of service to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Separation Orders FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 is seeking to change his character of service because he neither chose nor encouraged his separation from the Army; the decision to discharge him was based solely on determinations made by the medical staff at Fort Leonard Wood, MO. 3. The applicant's service records show: a. On 28 September 1988, the applicant enlisted into the U.S. Army Reserve for 8 years. On 1 November 1988, the applicant entered active duty at Fort Leonard Wood to complete initial entry training (IET) under the one-station-unit-training (OSUT) program. b. On 1 December 1988, an Entrance Physical Standards Board (EPSBD) convened to address whether the applicant met procurement medical fitness standards. (1) The applicant's chief complaint was severe pain in both feet; during the applicant's fourth week of basic combat training (BCT), he was no longer able to run, march, or stand in formations. The applicant affirmed he had not experienced any trauma to his feet while on active duty, but noted, when he was younger, he had worn orthopedic shoes until the 5th grade. He was seen in the Podiatry Clinic on several occasions, but no treatments offered relieved the applicant's pain. (2) The EPSBD diagnosed the applicant with EPTS (existed prior to service) flat feet and recommended separation, based on not meeting medical procurement fitness standards. The board cited Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 2-10b (5) (Lower Extremities – Foot and Ankle – Flat Feet). (3) On 15 December 1988, the applicant concurred with the board's findings and requested discharge without delay. Also on 15 December 1988, the applicant's BCT commander recommended separation, and the separation authority approved the applicant's discharge. c. Effective 20 December 1988, and per Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), orders discharged the applicant from the USAR. His discharge orders did not show the specific provision of AR 635-200 under which he was separated, nor was his character of service reflected. In addition, no DD Form 214 (Certificate of Release or Discharge from Active Duty) was issued. 4. During the applicant's era of service, Soldiers who did not meet procurement medical fitness standards could be separated as long as the condition was discovered within the first 6 months of active duty and confirmed by an EPSBD. Paragraph 5-11 (Separation of Personnel who did not Meet Procurement Medical Fitness Standards) specified EPSBD proceedings had to verify the Soldier would have been permanently or temporarily disqualified from entrance on active duty, had the condition been detected, and that the Soldier qualified for retention under chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), AR 40-501 (Standards of Medical Fitness). 5. USAR Soldiers were considered to be in an entry-level status, starting the date of their enlistment until 180 days after the onset of IET. Entry-level status Soldiers, regardless of component, received an uncharacterized character of service upon separation. On a case-by-case basis, however, the Secretary of the Army could authorize the issuance of an honorable discharge, when warranted by unusual circumstances involving personal conduct or the performance of duty. In addition, an honorable characterization was authorized for Soldiers separated for the convenience of the government (i.e. discharges promulgated under the provisions of chapter 5 (Separation for Convenience of the Government), including paragraph 5-11). 6. The applicant was not issued a DD Form 214 when he was discharged. According to the version of AR 635-5 (Separation Documents) that was in effect at the time, USAR Soldiers separated for not meeting medical procurement standards were specifically precluded from receiving a DD Form 214. However, the current regulation (AR 635-8 (Separation Processing and Documents)) does not distinguish between RC Soldiers separated due to physical disability under AR 635-40 and those discharged under paragraph 5-11, AR 635-200. * AR 635-8, paragraph 5-1 (When to Prepare the DD Form 214), states DD Forms 214 will be prepared for "RC Soldiers separated for cause or physical disability, regardless of the length of time served on active duty" * An official from the Transition Policy Branch, U.S. Army Human Resources Command affirms the above-cited paragraph 5-1 applies to RC Soldiers separated under paragraph 5-11, AR 635-200 7. In reaching its determination, the Board can consider the applicant’s petition, his submitted evidence, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board noted that the applicant completed less than 2 months of active duty. The Board also noted that the Entrance Physical Standards Board (EPSBD) diagnosed the applicant with EPTS (existed prior to service) flat feet and recommended separation, based on not meeting medical procurement fitness standards. On 15 December 1988, the applicant concurred with the board's findings and requested discharge without delay. 2. In accordance with regulation, individuals that serve on active duty less than 180 days receive a service characterization of “uncharacterized.” 3. The Board found the applicant’s character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 4. 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 : : : 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Chapter 3 (Character of Service/Description of Separation) outlined requirements for the characterization of service. (1) Paragraph 3-7a (Honorable Discharge) stated 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 performance of duty for Army personnel, or was otherwise meritorious that any other characterization would clearly be inappropriate. (2) Paragraph 3-9a (Uncharacterized Separations – Entry-Level Status Separation) stated an entry-level status separation was to be shown as uncharacterized when processing was initiated while the Soldier was in an entry-level status. On a case- by-case basis, the Secretary of the Army could authorize the issuance of an honorable discharge when warranted by unusual circumstances involving personal conduct or the performance of duty. An honorable characterization was authorized when the Soldier was separated based on convenience of the government or as a result of Secretary plenary authority. b. Chapter 5 (Separation for Convenience of the Government), Paragraph 5-11 (Separation of Personnel who did not Meet Procurement Medical Fitness Standards) stated Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment could be separated under this provision. Such conditions had to be discovered during the first 6 months of active duty and result from the findings of an EPSBD. The medical proceedings had to show the Soldier would have been permanently or temporarily disqualified from entrance on active duty, had the condition been detected, and that the Soldier would not have been disqualified for retention, per chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), AR 40-501 (Standards of Medical Fitness). c. Glossary, Section II (Terms), defined entry-level status for USAR Soldiers as beginning at enlistment and terminating under the following conditions: * For Soldiers ordered to IADT for once continuous period, termination is 180 days after starting training * Soldiers ordered to IADT for the split or alternative training option, entry-level status ends 90 days after the onset of Phase II (Advanced Individual Training) 3. AR 635-8 (Separation Processing and Documents), currently in effect, states in paragraph 5-1 (When to Prepare the DD Form 214) that DD Forms 214 will be prepared for RC Soldiers separated for cause or physical disability, regardless of the length of time served on active duty. 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. 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. 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) AR20190002841 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190002841 5 ABCMR Record of Proceedings (cont) AR20190002841 4