BOARD DATE: 8 November 2019 DOCKET NUMBER: AR20190006247 APPLICANT REQUESTS: The applicant requests, to change her: * discharge characterization to an honorable discharge, * separation authority, * narrative reason for separation, and * separation code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 her discharge should be changed because she disclosed her medical conditions at the time of enlistment and the recruiter enlisted her anyway. 3. The record is void of a separation packet. The record shows: a. On 2 November 1998, at the age of 19 years old, the applicant enlisted in the Regular Army for a term of 4 years. b. In connection with her enlistment, she underwent an enlistment medical examination, which indicated that her lower extremities were abnormal (left toe inflamed) and she had a vision defect. c.. An Entrance Physical Standards Board (EPSBD) Proceedings, dated 1 March 1999, states the applicant complained of bilateral knee pain for ten weeks. She stated she dislocated her right knee in the past and it has intermittently bothered her since then. The pain is interfering with her basic training because she experienced pain with walking, running, situps, and pushups. She was diagnosed with bilateral patella hypermobility. The EPSBD recommended she be separated for failure to meet medical retention standards in accordance with Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness), Chapter 2, paragraph 2-39c and indicated that the injury existed prior to service (EPTS). The applicant concurred with the proceedings and requested to be discharged without delay. The immediate commander recommended discharge and the discharge authority directed that the applicant be discharged from the service. d. A DD Form 214 (Certificate of Release or Discharge from Active Duty), shows on 12 March 1999, she was discharged with an uncharacterized characterization of service under Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), Chapter 11, entry level performance and conduct. She completed 4 months and 10 days of net active service this period. 4. The applicant states her discharge should be changed because she disclosed her medical conditions at the time of enlistment and the recruiter enlisted her anyway. Her record shows she enlisted at the age of 19 years old; she was the subject of EPSBD proceedings, which recommended separation for failure to meet medical retention standards in accordance with AR 40-501, Chapter 2, paragraph 2-39c and indicated that the injury existed prior to service (EPTS); and she was separated under, AR 635- 200, Chapter 11, with an uncharacterized discharge. 5. AR 635-200, states Chapter 11, provides that Soldiers in entry level status may be warranted on grounds of unsatisfactory performance or unsatisfactory conduct or both as evidenced by inability, lack of reasonable effort, failure to adapt to military environment, and minor disciplinary infractions. 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. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 6. AR 635-200, Chapter 5–11 (Separation of personnel who did not meet procurement medical fitness standards) states that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on AD or ADT for initial entry training, may be separated. Such conditions must be discovered during the first 6 months of AD. Such findings will result in an entrance physical standards board. This board, which must be convened within the soldier’s first 6 months of AD, takes the place of the notification procedure (para 2–2) required for separation under this chapter. 7. Although her record is void of separation packet, the EPSB Proceedings indicate an EPTS condition. 8. The applicant is advised that 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 the character of service to be rated as honorable or otherwise. 8. In reaching its determination, the Board can consider the applicant's petition and her service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief. 1. Pertaining to the applicant’s request for an honorable discharge, there is insufficient evidence to grant relief. a. 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, the applicant’s DD Form 214 properly shows her service as uncharacterized. b. 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. 2. Regarding the applicant's request for a change to separation authority, separation code and narrative reason for separation, there is sufficient evidence to grant relief. The applicant underwent an EPSB that found an EPTS condition within the first six months of training. Therefore, the correct authority, separation code and narrative reason are, respectively: * AR 635-200, Chapter 5-11, * JFW * Failed to Meet Medical/Physical/Procurement Standards BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: After review of the application and all evidence, the Board determined that partial relief is warranted. 1. As a result, the Board determined the evidence presented is insufficient to warrant a portion of the requested relief and recommends denial of so much of the application that pertains to upgrading the applicant’s discharge characterization. 2. However, the Board determined the evidence presented is sufficient to warrant a portion of the requested relief and recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 12 March 1999 showing: a. separation authority (item 25) as “AR 635-200, para 5-11,” b. separation code (item 26) of ““JFW”, and c. the narrative reason (item 28) as “Failed to Meet Medical/Physical/Procurement Standards” 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for separation of enlisted personnel. a. A separation will be 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 conditions 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 (AD), or the first 180 days of continuous AD following a break of more than 92 days of active military service. b. 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. c. AR 635-200, Chapter 11, provides that Soldiers in entry level status may be warranted on grounds of unsatisfactory performance or unsatisfactory conduct or both as evidenced by inability, lack of reasonable effort, failure to adapt to military environment, and minor disciplinary infractions. 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. d. Paragraph 5-3 (Secretarial Plenary Authority) states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006247 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006247 6 ABCMR Record of Proceedings (cont) AR20190006247 4