BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20190010354 APPLICANT REQUESTS: * in effect, to change his uncharacterized discharge to honorable * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) rating decision dated 15 July 2005 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 he requests the Board upgrade his discharge from other than honorable to a higher level. He was released from the Army for having bipolar disorder and anxiety. It was of no fault of his own and he believes the discharge should be upgraded. It is his understanding that the Board will take “liberal consideration” when reviewing this request. 3. On 3 January 2000, in connection with his enlistment in the United States Army Reserve, the applicant completed medical examinations that did not indicate he had a mental health condition. 4. On 10 May 2000, the applicant enlisted in the Regular Army for a period of 4 years. He did complete training requirements; therefore, was not awarded a military occupational specialty. 5. On 13 July 2000, a Naval Medical Center San Diego - Command Narrative Summary shows, in pertinent part, the applicant was absent without leave (AWOL) from Fort Jackson, SC, when he was admitted for psychiatric evaluation. He was diagnosed with an adjustment disorder, and a personality disorder not otherwise specified. The applicant’s suicidality was clearly linked to his service in the Army. The psychiatry resident further determined the applicant was a risk to himself and others, and separation action in accordance with (IAW) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 5-13 should be initiated expeditiously. 6. On the same date, the applicant was counseled for being recommended for separation based on being AWOL and an attempted suicide on 3 July 2000. He was also counseled for being diagnosed with a personality disorder and being recommended for an expeditious separation from the Army IAW AR 635-200, chapter 5-13. He was informed that, if he was in an entry level status (within 180 days of continuous active duty service) he could receive an uncharacterized separation. The applicant was further informed that, if he was separated before the expiration of his term of service, he may forfeit contributions to the Montgomery GI Bill education program. He could also expect to encounter substantial prejudice in civilian life and lose eligibility for VA benefits, if a general or under other than honorable conditions discharge was issued to him. The applicant agreed with the counseling and place his signature on the document. 7. On 14 July 2000, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-13 of AR 635- 200, due to a personality disorder. The immediate commander stated a psychiatrist had diagnosed the applicant with a personality disorder. The commander recommended an entry level status separation, and also informed the applicant of his rights. a. The applicant acknowledged receipt of the separation memorandum and did not desire to consult with counsel. He elected not to submit statements in his own behalf and also acknowledged that he had been afforded the opportunity to consult with civilian or military counsel. b. The applicant acknowledged he understood that, if the recommendation for separation was approved he would receive an entry level separation with an uncharacterized discharge. c. The applicant’s chain of command recommended approval of the separation action with the issuance of an uncharacterized entry level separation. 8. On 18 July 2000, the separation authority approved the applicant’s separation action in accordance with paragraph 5-13 of AR 635-200. He directed the applicant be separated with an Uncharacterized Discharge Certificate. 9. On 20 July 2000, the applicant was discharged accordingly. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-200, paragraph 5- 13, by reason of personality disorder. He completed 2 months of active service and he had lost time during this period from 3 to 13 July 2000. This form also shows his character of service as “uncharacterized”. 10. The applicant provided a VA ratings decision that shows he was awarded service- connected disability compensation for bipolar disorder with obsessive compulsive disorder rated at 70 percent effective 12 September 2003. 11. AR 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel. a. Paragraph 5-13 stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to a disability under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provided the personality disorder interfered with assignment to or performance of duty. b. Chapter 3 (Character of Service/Description of Separation) contains guidance that states, in pertinent part, entry level status separations will be uncharacterized. A separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status. c. Entry level status for Regular Army Soldiers is the first 180 days of continuous active duty. 12. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, clemency, and liberal consideration. 13. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined they could reach a fair and equitable decision in the case without a personal appearance by the applicant. ? Additionally, the Board found that there is insufficient evidence to grant relief. The governing regulation provides that a separation will be described as uncharacterized, if the separation action is initiated within the first 180 days of active duty service. As such, his DD Form 214 properly shows his service as uncharacterized. 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, provided the basic authority for the separation of enlisted personnel. a. Paragraph 5-13 stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provided the personality disorder interfered with assignment to or performance of duty. The regulation required that the condition be a deeply ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty. Commanders would not take action prescribed in this paragraph in lieu of disciplinary action. The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired. b. Chapter 3 (Character of Service/Description of Separation) contains guidance that states, in pertinent part, entry level status separations will be uncharacterized. A separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status. c. Entry level status for Regular Army Soldiers is the first 180 days of continuous active duty. 3. Assistant Secretary of the Army (Manpower and Reserve Affairs) memorandum, subject: Enlisted Administrative Separations, dated 10 February 2009, provided immediate guidance to the field concerning administrative separation under AR 635- 200, paragraph 5-13. The guidance states separation under the provisions of this paragraph was limited to enlisted Soldiers who have less than 24 months of active duty service as of the date separation proceedings were initiated. 4. AR 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. It provides that the mere presence of an impairment does not justify a finding of unfitness because of physical disability. 5. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code "JFX" is the correct code for Soldiers separating under paragraph 5-13 of AR 635-200 because of a personality disorder. The SPD/RE code cross reference table in effect then shows an SPD of "JFX" has a corresponding RE code of 3. 6. 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. a. 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. b. 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) AR20190010354 4 ABCMR Record of Proceedings (cont) AR20190010354 1