IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20190011725 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show 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), dated 19 August 2019 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 the type of discharge he received has to be changed for personal reasons, such as employment. 3. The applicant enlisted in the New York Army National Guard (NYARNG) on 20 June 1995. He was ordered to active duty for training on 7 January 1996. 4. The applicant was counseled on seven separate occasions between 13 January 1996 and 21 February 1996. His DA Forms 4856 (General Counseling Forms) show he was counseled on the following dates for the indicated offenses: * 13 January 1996 – poor performance during Phase I of his diagnostic Army Physical Fitness Test (APFT) * 22 January 1996 – lack of ability or aptitude to become a productive Soldier in today's Army * 26 January 1996 – failure to follow specific guideline by leaving his wall locker/weapon unsecure after being briefed on the security procedures to be followed * 10 February 1996 – failing phase II of his diagnostic APFT * 19 February 1996 – failure to complete all requirements of training by not qualifying with the Rifle M-16A2 with a score of 11 * 19 February 1996 – failure to participate in drill and ceremonies number 8 * 21 February 1996 – recommendation for referral to Community Mental Health Services (CMHS) 5. In a memorandum for CMHS, dated 21 February 1996, the applicant was command referred for evaluation. His unit commander cited uncleanliness, poor memory, nervousness, anger, depression, and inability to follow direction as behavioral observation/characteristics/appearance. The unit commander noted that the applicant was very slow physically and mentally, and that he lacked basic learning skills. He also noted the applicant's poor potential for retention/continued training. 6. The CMHS Findings/Recommendations shows the applicant was seen at the CMHS due to emotional difficulty adjusting to the military. He was diagnosed with adjustment disorder with mixed anxiety and depressed mood. The social worker stated adjustment disorders are the result of an individual's difficulty in adapting to a specific external stressor. The verbal and physical stress inherent in the training environment could easily produce such an adjustment problem. The disorder was likely to recur in future stressful situations. This diagnosis did not warrant discharge through medical channels. Continued attempts to train the applicant was likely to tax the unit cadre valuable energy, and time, with no positive impact on the Soldier. The Soldier's potential for successful completion of military service was considered to be poor. The applicant was returned to duty and he was psychiatrically cleared for any administrative or judicial action deemed to be appropriate by his command. 7. The applicant was counseled on 21 February through 24 February 1996 for missing training. 8. The applicant was counseled on 22 February 1996. He was informed that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11. He concurred with the counseling, acknowledging that he understood the loss of benefits and entitlements upon his separation and that he may be eligible for enlistment after two years from date of separation. He was told his service would be uncharacterized. 9. The applicant was counseled on 26 February 1996 for failure to throw two live hand grenades and for failure to negotiate the hand grenade course. 10. The applicant was notified that action was being initiated to separate him from the Army under the provisions of Army Regulation 635-200, Chapter 11, for entry level performance and conduct. His commander cited the diagnosis by CMHS and the applicant's lack of desire to remain in the military as the reason for the proposed separation action. 11. The applicant acknowledged receipt of the notification for discharge on 26 February 1996. He consulted with counsel and he made an election not to submit a statement in his own behalf. 12. The applicant was formally recommended for discharge under the provisions of Army Regulation 635-200, Chapter 11, due to having an adjustment disorder with mixed anxiety and depressed mood, and his lack of desire to remain in the military on 26 February 1996. 13. The applicant was counseled on 28 February 1996 for failing to take the end of cycle test, and again on 29 February 1996 for failing to participate in the company field training exercise. 14. The separation authority approved the recommended discharge on 20 March 1996 and directed that the applicant's service be uncharacterized. 15. The applicant was discharged on 26 March 1996, under the provisions of Army Regulation 635-200, Chapter 11, due to entry level performance and conduct. He completed two months and 20 days of net active service this period. His DD Form 214 confirmed his service was uncharacterized. He was transferred to the Adjutant General of the State of New York for further separation processing from the ARNG. 16. 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 still in an entry-level status at the time of his separation. In accordance with the governing regulation, a Soldier's service will be uncharacterized when the Soldier is discharged while in an entry-level status. 17. Orders 078-008, issued by the NYARNG on 18 April 1996, discharged the applicant from the NYARNG effective 27 March 1996, under the provisions of National Guard Regulation 600-200, paragraph 8-27 and his service was uncharacterized. 18. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board considered the applicant's statement, his service record, and published DoD guidance for consideration of discharge upgrade requests. The Board found no mitigating circumstances that would support a change to his character of service. He was discharged while he was in an entry-level status, and his service was uncharacterized as required by the governing regulation. 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. 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 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states that 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. Paragraph 3-7b states that 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. c. Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status. (1) This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self-discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service. 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. The regulation required an uncharacterized description of service for separation under this chapter. (2) Separation under Chapter 11 applied to Soldiers who were in an entry level status and, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty and demonstrated that they could not or would not adapt socially or emotionally to military life. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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 on the basis of equity, injustice, or clemency grounds, Boards 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) AR20190011725 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011725 6 ABCMR Record of Proceedings (cont) AR20190011725 5