BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20190005410 APPLICANT REQUESTS: in essence, an upgrade of his uncharacterized discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge in lieu of DD Form 149 (Application for Correction of Military Record) * National Personnel Records Center (NPRC) Letter, dated 28 February 2019 * NPRC Letter, dated 14 March 2019 * Job Resume * Military Service Records, among other documents, include: * International Certificates of Vaccination – Immunization Record * SF 88 (Report of Medical Examination, dated 3 June 1987 * SF 93 (Report of Medical History), dated 3 June 1987 * Additional Separation Processing Data 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: a. Under the current standards, he would not receive the same type of discharge. He was so close to finishing his enlistment that it was unfair to give him the type of discharge he received. His record of nonjudicial punishment (NJP), Article 15, Uniform Code of Military Justice (UCMJ), shows that he committed only minor, isolated offenses. His personal, financial, medical, physical, and psychiatric problems impaired his ability to serve, as well as his youth, immaturity, and deprived background. The punishment he received was too severe compared with today’s standards. If given the opportunity he would be able to work or have a career in the area of military/veteran personnel. He believes his job resume will be able to speak volumes. Also his legal assistance can detail how his judgment and sentence would be an acquittal, reversed, remanded, and not affirmed as before. b. It is almost 30 years later; many things have changed, people, places, and things. In the process, he is also looking to clear his name in his criminal background through ballistic forensic analysis. He is very active with various ?Rehabilitation/Reentry? Focused Programs. He has been the chairman for Alcoholics Anonymous since 9 November 2016. One of his close volunteers is a friend who is a former inmate and a veteran. If the Board needs a character reference, please feel free to contact him. c. After he left the military and came back home, he continued his songwriting career and to work with Import/Export Houses as a distributor. He moved to Dallas, TX, and obtained employment with a security company, Murray Guard, as a commissioned officer from 1990 to 1991 (2 years). d. When he arrived at George Betol Unit in 2007. He read an article in the Tyler Morning News about ex-offenders being allowed to recruit back into the U.S. Armed Forces on a case by case basis. He is now 50 years old but with his prison record, fulltime job, satisfactory disciplinary record, program participation, and completed education, he would like to be able to work within the military family, even as a civilian, and as a custodian. One of his AA/NA (Alcoholic Anonymous/Narcotics Anonymous) volunteers (peer counselor) works at the Department of Veterans Affairs in Houston, TX. 3. On 19 August 1987, at the age of 17 years old years old, the applicant enlisted in the Regular Army for a term of 4 years. He was assigned to Fort Benning, GA, for initial entry training. 4. On 31 August 1987, he underwent a mental status evaluation in connection with pending administrative separation. The evaluator indicated that applicant had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the retention requirements of Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness). The evaluator stated: a. Soldier was seen at Community Mental Health Services following a suicide gesture. He denied wanting to kill himself at the time and there was no apparent psychiatric disorder. Soldier reports that his feet gave off a strong odor that prevented him from associating with others. Soldier stated that he made a mistake in joining the military and desired a discharge. He expressed the belief that he lacked any of the qualities it took to become a productive Soldier and indicated that he was unmotivated to train. b. Soldier was a very immature individual who demonstrated poor judgement and inadequate coping skills. Due to his current emotional instability, it was probable that he would continue to complain and have difficulty relating to both peers and cadre. The prognosis for successful completion of training was very poor. Soldier was cleared for any administrative action deemed appropriate by Command. 5. Fort Benning (FB) Form 128 (Statement of Option for Medical Examination for Separation) shows the applicant did not desire a separation medical examination. 6. On 8 September 1987, the applicant’s immediate commander notified him that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, (Entry Level Status Performance and Conduct) due to his inability to adapt to the military lifestyle. 7. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised of the basis for the contemplated action, understood his rights, waived his right to consult with counsel, and elected not to submit statements on his own behalf. 8. The commander recommended that the applicant be discharged in lieu of transfer to the Individual Ready Reserve (IRR) and the reassignment requirement be waived because further retention will prove futile and counseling and rehabilitation efforts would not result in the quality of Soldier desired by the U.S. Army. The appropriate separation authority approved the separation under AR 635-200, Chapter 11 and approved the commander's request to waive the rehabilitation requirements. His record is void of any counseling statements recorded on DA Form 4856 or any other form of counseling. 9. On 18 September 1987, the applicant was discharged accordingly. His service was characterized as entry level status for the reason of entry level status performance and conduct. He completed 30 days of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty) is void of a military occupational specialty or military education. 10. The applicant provides: a. National Personnel Records Center (NPRC) Letter, dated 28 February 2019, notifying the applicant that they had no authority to review and approve amendments or corrections to military records and his DD Form 293 was forwarded to the Army Review Boards Agency. b. NPRC Letter, dated 14 March 2019, notifying the applicant that they are responding to his request for a copy of his Official Military Personnel File and medical record by providing various documents. The NPRC provided the applicant his military records, which among other documents included: * International Certificates of Vaccination – Immunization Record from 22 – 22 August 1987 * SF 88 (Report of Medical Examination, dated 3 June 1987, shows he was qualified for entrance in the Regular Army * SF 93 (Report of Medical History), dated 3 June 1987, shows he was in good health with no abnormalities * Additional Separation Processing Data shows his blood type and mailing address after his separation c. His Job Resume stated his objective was to obtain a position of General Clerk Law and Paralegal Trainee. He listed his education, computer program experience, vocational courses, on the job training experience, special skills, volunteer experience, work experience, interest and activities, chronological work history while incarcerated from 1999 to 2020, profitable hobby, and indicated that he is a self-published author. 11. The applicant states under the current standards, he would not receive the same type of discharge. His personal, financial, medical, physical, and psychiatric problems along with his youth, immaturity, and deprived background impaired his ability to serve. His record of NJP, Article 15, UCMJ, shows that he committed only minor, isolated offenses. The applicant revealed that he was incarcerated but did not disclose the reason for his incarceration; however the Texas offender register shows he is incarcerated for life for murder and voluntary manslaughter and was denied parole in 2018. a. In regards to his assertion that under the current standards, he would not receive the same type of discharge, AR 635-200, in effect at the time and currently in effect, have the same guidelines regarding Soldiers separated in an entry level status; their service will be uncharacterized. He served 30 days of his 4-year contractual obligation. b. In regards to his personal, medical, and psychiatric problems, along with his youth, immaturity, and deprived background impaired his ability to serve, his record shows that he enlisted at the age of 17 years old. He was seen by Community Mental Health Services following a suicide gesture, which he denied wanting to kill himself. The evaluator stated he was very immature and demonstrated poor judgement and inadequate coping skills; due to his emotional instability, it was probable that he would continue to complain and have difficulty relating to both peers and cadre. Regarding his financial and physical problems, the applicant did not provide any evidence to support his financial and physical state at the time of his service. c. In regards to his record of NJP, Article 15, UCMJ, shows that he committed only minor, isolated offenses, his record is void of any NJP and/or counseling statements, which would provide additional information regarding his duty performance. The legal assistance documents mentioned in the applicant’s statement were not submitted with his application. 12. AR 635-200, in effect at the time, stated separation under chapter 11 was a separation of Soldiers in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action) who demonstrated unsatisfactory performance or minor disciplinary infractions, or both as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment. Entry level separation –– uncharacterized was used for separation under the provisions of this chapter. AR 635-200, currently in effect, has the same guidance for the reason for separation and regarding the uncharacterized character of service. Paragraph 1-18 (Counseling and Rehabilitative Requirements): (1) Required counseling be performed on DA Form 4856 (General Counseling Form) before initiating action to separate a Soldier under chapter 11. The counseling would include the reason for counseling, that separation action may be initiated if the behavior continues, the type of discharge that could result from the possible separation action and the effect of each type. Counseling was to be conducted per AR 350-21 (Instruction in Benefits of an Honorable Discharge), paragraph 5 (Content of Instruction). (2) Required Soldiers to be recycled (reassignment between training companies or, where this is not feasible, between training platoons) at least once; however, the rehabilitation transfer may be waived by the separation authority. 13. AR 635-5 (Personnel Separations –– Separation Documents), item 24 (Character of Service), did not include ?uncharacterized? as an entry until 1989. Army personnel turned to AR 635-200 for regulatory guidance, which provided entry level separation –– uncharacterized was used for separation under the provisions of chapter 11. During this period the regulation was unclear of the specific terminology to enter; therefore, ?entry level status? was often entered in item 24, vice ?uncharacterized.? 14. The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 15. The applicant is advised an uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means that the Soldier had not been in the Army long enough for his character of service to be rated as honorable or otherwise; 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. c. 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 condition is authorized under 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. 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. d. Chapter 11 of the regulation provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. (1) This provision applied to individuals who had demonstrated they were not qualified for retention evidenced by: * inability * lack of reasonable effort, or * failure to adapt to the military environment (2). The separation policy applied to Soldiers who could not 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, and have failed to respond to counseling (DA Form 4856 (General Counseling Form)). Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action). An uncharacterized description of service was required for separation under this chapter. e. Paragraph 1-18 (Counseling and Rehabilitative Requirements) required counseling be performed on DA Form 4856 (General Counseling Form) before initiating action to separate a Soldier under chapter 11. The counseling would include the reason for counseling, that separation action may be initiated if the behavior continues, the type of discharge that could result from the possible separation action and the effect of each type. Counseling was to be conducted per AR 350-21 (Instruction in Benefits of an Honorable Discharge), paragraph 5 (Content of Instruction). It also required Soldiers to be recycled (reassignment between training companies or, where this is not feasible, between training platoons) at least once; however, the rehabilitation transfer may be waived by the separation authority. 3. AR 635-5 (Personnel Separations –– Separation Documents), in effect at the time, prescribed the separation documents which were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established a standardized policy for preparing and distributing DD Form 214. a. For item 24 (Character of Service), the authorized entries were: * Honorable * Under Honorable Conditions (General) * Under Other Than Honorable Conditions * Bad Conduct * Dishonorable * To be Determined (see AR 635-100 (Personnel Separations – Officer Personnel, paragraph 1-5b (discussion on officer’s character of service) * Not Applicable (for release from custody and control of the Army due to void or voided enlistments) b. The regulation did not include ?uncharacterized? as an entry until 1989. Army personnel turned to AR 635-200 for regulatory guidance, which provided entry level separation –– uncharacterized was used for separation under the provisions of chapter 11. During this period it was unclear of the specific terminology to enter; therefore, ?entry level status? was often entered in item 24, vice ?uncharacterized.? 4. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 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// ABCMR Record of Proceedings (cont) AR20190005410 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005410 10 ABCMR Record of Proceedings (cont) AR20190005410 7