IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20190008902 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing his uncharacterized character of service to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * SGLV Form 8286 (Servicemembers' Group Life Insurance Election and Certificate) * Separation Orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Bachelor of Arts Degree * Texas State Guard Honorable Discharge 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, in effect, his uncharacterized separation was improper and inappropriate, given his personal situation. Today, an uncharacterized character of service can damage one's chances of being hired in many civilian organizations, and, for the applicant, it has functioned as an automatic disqualifier whenever he sought civil service employment. The generic narrative reason for separation of "Entry Level Performance and Conduct" further compounds his discharge's negative impact by giving a prospective employer a false impression to as to the applicant's conduct while on active duty. a. His discharge resulted from the applicant's need to return home to could care for his sister. He lived with his sister until he left for basic combat training (BCT) and, with his departure, she was all alone; it was right after he reported to BCT that his sister's doctor diagnosed her with cancer. The applicant argues his leadership should have granted him a dependency discharge with an honorable character of service; at the time, however, he was unaware that such a separation even existed. He also did not fully recognize the considerable prejudice he would later encounter simply by having an uncharacterized discharge. b. Under chapter 6 (Separation Because of Dependency or Hardship), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), a Soldier could qualify for a dependency separation in cases where an immediate family member required care or support. Financially, it was just not feasible to hire nursing care for his sister, and no one else but the applicant was capable of providing her the care she needed. The applicant contends he asked to return home so he could help his sister; his chain of command responded by giving him an entry level separation. c. According to his DD Form 214, his chain of command used chapter 11 (Entry Level Performance and Conduct), AR 635-200, to justify his discharge; he argues, however, the use of this provision is inequitable because his situation did not conform to the criteria listed in paragraph 11-2 (Basis for Separation). Specifically, the regulation states a Soldier must have demonstrated unsatisfactory performance or conduct, as evidenced by a lack of ability, an absence of reasonable effort, a failure to adapt to the military environment, or by the commission of minor disciplinary infractions; the applicant claims none of the criteria applied to him. Further, he notes paragraph 11-4 (Counseling and Rehabilitation Requirements) stipulated commanders had to ensure Soldiers received adequate counseling and rehabilitation; the applicant maintains he was never counseled and was unaware of any options that might have been available to him. d. While he acknowledges the entry level separation was likely never intended as a punishment, the end result for him, over the past 15 years, is that he has suffered harsh and undue penalties. He asks the Board to consider his post-service accomplishments, which include achievements in higher education, involvement in community work, and maintaining an upstanding civilian record. He affirms he has tried to reenlist into the military, but has too many dependents to qualify. Nonetheless, he was able to join the Texas State Guard, where he volunteered for various local operations and ultimately earned an honorable discharge. 3. The applicant provides documents from his official military personnel file (OMPF), as well as his Bachelor of Arts diploma and his honorable discharge orders from the Texas State Guard. 4. On 5 April 2004, the applicant enlisted into the U.S. Army Reserve (USAR) for an 8-year term. a. His service record includes evidence he entered active duty on 27 April 2004 to complete initial entry training (IET) at Fort Leonard Wood, MO. At some point prior to July 2004, the applicant's chain of command initiated separation action under chapter 11, AR 635-200. b. The applicant's separation packet is not available for review. However, the record does include his DD Form 214, which shows, on 2 July 2004, he was separated with an uncharacterized character of service, based on chapter 11, AR 635-200; the narrative reason for separation was "Entry Level Performance and Conduct." His DD Form 214 also shows he completed 2 months and 6 days of net active service, was not awarded a military occupational specialty, and received no awards or decorations. 5. The absence of the applicant's separation packet means we are unable to determine or provide the specific circumstance(s) that led to his discharge. However, in view of the fact his service record contains his DD Form 214 that states the reason and authority for separation, the Board presumes the applicant's leadership properly completed his discharge action. This presumption notwithstanding, AR 635-8 (Separation Processing and Documents) and AR 600-8-104 (Army Military Human Resources Records Management) both require supporting documents for an approved separation action to be maintained in the affected-Soldier's OMPF. a. Per chapter 11, AR 635-200, commanders were to initiate separation action against entry level Soldiers who demonstrated unsatisfactory performance or conduct, as evidenced by a lack of ability, an absence of reasonable effort, a failure to adapt to the military environment, or by the commission of minor disciplinary infractions. Paragraph 11-4 indicated counseling and rehabilitation requirements were essential in cases where entry level performance and conduct served as the basis for separation; before initiating separation, the regulation stated commanders were responsible for ensuring Soldiers received adequate counseling and rehabilitation. b. The regulation also stipulated commanders use of the notification procedure when advising the Soldier of the contemplated separation action; this procedure applied in cases where circumstances did not warrant an under other than honorable conditions character of service. (1) The notification procedure involved giving the Soldier a written notice of the proposed separation, which specified the type of separation, the reason for the commander's action, and the Soldier's rights under the regulation; those rights included: consultation with military counsel, submission of statements in his/her own behalf, copies of documents to be sent to the separation authority, and the ability to waive the aforementioned rights in writing. (2) The Soldier was to indicate on an "Election of Rights" document whether he/she consulted with counsel, was submitting matters in his/her own behalf, and what rights he/she was asserting or waiving. c. Soldiers separated in an entry-level status (i.e. within the first 180 days of continuous active duty) were required to be issued uncharacterized characters of service. The Secretary of the Army could, on a case-by-case basis, issue an honorable character of service when clearly warranted by unusual circumstances involving personal conduct or duty performance. 6. Soldiers on active duty could also be discharged or released from active duty under chapter 6, AR 635-200, based on a genuine dependency; the regulation defined dependency as involving a disabling condition, incurred by a member of the Soldier's immediate family, which resulted in the family member's reliance on the Soldier for principal care or support. a. Separation criteria included the following: * The family member's condition had to have arisen since the Soldier entered active duty or active duty for training, and could not be temporary in nature * Efforts had to have been made to alleviate the dependency conditions without success * Separation of the Soldier was the only available means to alleviate the dependency b. The Soldier was required to submit an application with supporting documentary evidence; Soldiers in an entry level status also received an uncharacterized character of service. 7. The applicant essentially argues: * His chain of command used a separation provision for which there was no supporting evidence; he did not fit the chapter 11 criteria for discharge * His chain of command erred by not counseling him, nor did they try to rehabilitate him * His leadership failed to offer him the opportunity to pursue a dependency separation under chapter 6; had they done so, he would have received an honorable discharge * Since his discharge, he has achieved numerous post-service accomplishments * Obtaining this upgrade would enhance his ability to gain civil service employment 8. 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. 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, his record of service, the absence of a separation packet or documents supporting the applicant’s statement, the reason for his separation and his service in the ARNG. The Board found insufficient evidence of mitigation to overcome the documented reason for his separation. The Board considered the documents and statement of the applicant regarding post-service achievements and conduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was 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, 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. 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 duty performance. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (Uncharacterized Separations). Soldiers separated in an entry- level status receive an uncharacterized character of service. A separation is an entry level status separation if its processing is initiated during the Soldier's first 180 days of continuous active duty. The Secretary of the Army could, on a case-by-case basis, issue an honorable character of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. d. Chapter 6 (Separation Because of Dependency or Hardship). Soldiers on active duty could be discharged or released from active duty based on a genuine dependency; the regulation defined as the death or disability of a member of the Soldier's immediate family that resulted in the family member having to rely on the Soldier for principal care or support. The family member's condition had to have arisen since the Soldier's entry on active duty or active duty for training, the condition was not temporary, efforts had been made to alleviate the dependency conditions without success, and separation of the Soldier was the only means available to alleviate the dependency. The Soldier was required to submit an application for separation that was supported by documentary evidence; Soldiers in an entry level status were required to receive an uncharacterized character of service. e. Chapter 11 (Entry Level Status Performance and Conduct) provided that entry level Soldiers were to be separated when they demonstrated unsatisfactory performance and/or conduct, as evidenced by an inability, a lack of reasonable effort, or a failure to adapt to the military environment. Separations under this chapter were required to be listed as uncharacterized. 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 (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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190008902 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190008902 8 ABCMR Record of Proceedings (cont) AR20190008902 6