ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20190004771 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 November 1988, to shows his service was characterized as honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement * DD Form 2246 (Applicant Medical Prescreening Form), dated 2 June 1988 * Standard Form (SF) 93 (Report of Medical History), dated 2 June 1988 * SF 88 (Report of Medical Examination), dated 2 June 1988 * SF 513 (Medical Record – Consultation Sheet), dated 2 June 1988 * High School, Special Diploma, and High School Transcripts, dated 29 June 1988 * SF 698 (Medical Record – Dental), dated 1 August 1988 * SF 600 (Chronological Record of Medical Care), dated 1 August 1988 * DA Forms 5181-R (Screening Note of Acute Medical Care), dated 29 August and 2 September 1988 * DD Form 214, for the period ending 10 November 1988 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 10 November 1988 * Army National Guard (ARNG) Current Annual [Retirement Point] Statement, prepared 8 December 1988 * NGB Form 22A (Correction to NGB Form 22), dated 6 March 1989 * two reports of care from the Orthopaedic Center of, dated 5 July 2013 and 3 December 2013 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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, a. He enlisted in the ARNG on 2 June 1988. He was recruited right out of high school in. He trained at Fort Leonard Wood, Missouri but was discharged during training due to receiving two Article 15s. He is applying for an upgrade of his discharge status from uncharacterized to honorable. b. In approximately March 1988, he took the Armed Services Vocational Aptitude Battery (ASVAB) but due to a learning disability, he did not pass the test on his own. His recruiter altered the scores and signed off on his eligibility for entry; this was the first time the Military did him a disservice. The second time the military did him a disservice was when he went before the disciplinary board for Article 15 infractions; his rights where not explained nor was he offered the assistance of a trial defense service (TDS) attorney to represent him or give guidance. c. Prior to the board convening and during the proceedings, he was not aware of his right to submit written or recorded matters for consideration by the Board. When he appeared before the board without counsel, he should have been counseled as to the characterization or description of service that he may receive as a result of the board action; the effects of such characterization or description; and that he could request counsel. Furthermore, the allegations were not supported by a preponderance of the evidence and shouldn't have been used as a basis for separation. At the time, he was not offered the opportunity to present his case or consult with counsel; he simply was told to sign a document agreeing to be separated from service. d. In September 2018, he discovered this error and injustice by discussing his military service and situation with another Veteran who had a similar experience. Through this discussion, he began to inquire into Army Regulations and discovered that he was denied certain rights during the separation process and even during the recruitment phase. His superiors took advantage of his learning disability and his inexperienced youth. e. Due to no legal representation and a learning disability, which he received no reasonable accommodation for, he was not aware of the rights he was waiving. If he had knowledge of his rights or had legal representation and/or guidance, he would have not accepted an uncharacterized discharge. This legal error and the injustice of being taken advantage of due to having a learning disability has caused great strife since his separation. During his brief military career, he was treated at least twice for pain and discomfort in both knees. Later in life, he even had to have surgery on his right knee, and still experiences pain in his left knee. An upgraded service characterization will ensure he receives the Department of Veterans Affairs (VA) disability benefits and resources he is entitled to. 3. The applicant enlisted in the Florida Army National Guard (FLARNG) on 2 June 1988. 4. The applicant’s records are not available for review. However, the DD Form 214 he provides shows he entered active duty for training (ADT) on 28 July 1988. He was released from ADT and was discharged from Reserve of the Army on 10 November 1988. He was returned to the ARNG for further discharge processing, under the provision of Army Regulation 635-200, paragraph 11-3a, by reason of entry level status performance and conduct, with an uncharacterized discharge. His DD Form 214 shows he was credited with completing 3 months and 3 days of creditable active military service, with no time lost. He was not awarded a military occupational specialty. 5. The applicant was discharged from the FLARNG on 10 November 1988, with an uncharacterized discharge. The NGB Form 22 he was issued shows he was credited with completing 5 months and 9 days of service for pay. 6. The applicant contends: a. His recruiter's improper actions resulted in him entering the Army without a qualifying ASVAB score. There is insufficient documentary evidence available to either refute or deny this contention. b. He was discharged due to receiving two Article 15s while in training at Fort Leonard Wood, Missouri. There is insufficient documentary evidence available to either refute or deny this contention. c. He was not sufficiently counseled with respect to his separation proceedings. His learning disabilities were not sufficiently addressed by his chain of command. There is insufficient documentary evidence available to either refute or deny this contention. d. During his brief military career, he was treated at least twice for pain and discomfort in both knees, and later in life had to have surgery on his right knee and still experiences pain in his left knee. His character of service should be upgraded so he can qualify for VA medical benefits. He provides several medical documents from his Military Entrance Processing Station (MEPS) physical examination, which show he had knee pain that existed prior to military service. The DA Forms 5141 show he injured his left knee 8 months before his MEPS physical, while playing football, and the SF 88 shows he had prior grinding in both knees. 7. The applicant provides copies of some of his entrance documents including his medical and dental screening records; his high school and transcripts; his DD Form 214; NGB Form 22; NGB Form 22A; and two orthopedic treatment reports. 8. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time of her separation. As a result, her service was appropriately described as "uncharacterized" for this period of active service, in accordance with governing regulations. 9. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It simply means the Soldier was not in the Army long enough for his or her character of service to be rated as honorable or otherwise. 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 contentions, the length of his service, the absence of his records and the reason for his separation. The Board considered the medical documents provided by the applicant. Based on a preponderance of evidence, the Board found insufficient evidence to determine that the applicant’s reason for separation and character of service were 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. 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 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 describes the different types of characterization of service. It states an uncharacterized separation is an entry-level separation. A separation is 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 condition 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. Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status. It states when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter. This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons: Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling. ABCMR Record of Proceedings (cont) AR20190004771 6 1