IN THE CASE OF: BOARD DATE: 31 March 2020 DOCKET NUMBER: AR20190014955 APPLICANT REQUESTS: to show item 24 (Character of Service) of her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 25 February 1997, to reflect something other than "uncharacterized." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Certificate of Live Birth, State of Illinois, issued on 14 March 2012 * Copies of her Washington State Identification Card and Social Security Card FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, 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 her DD Form 214 contains the entry "uncharacterized," but should clearly state she received either an honorable or a dishonorable character of service at the time of discharge. 3. The applicant enlisted in the Regular Army on 11 June 1996 and was assigned to Fort Gordon, GA for initial entry training. 4. A review of her record contains numerous DA Forms 4856 (General Counseling Form), administered during the period 23 August 1996 through 3 December 1996, which show she was counseled for a myriad of misconduct issues (i.e., appearance, conduct, motivation, breaking restriction, failing to obey a lawful order, and failing to go to prescribed place of duty (FTR)). 5. The applicant's separation processing began on 6 December 1996, which was the date her immediate commander notified her on that he was initiating action to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12(b), for a pattern of misconduct. As reason for this action, the commander cited her pattern of misconduct of breaking restrictions and FTRs, and he recommended an entry level (uncharacterized) characterization of service. a. The applicant acknowledged receipt of the notification memorandum and indicated her desire for a separation medical examination on the same date. b. The applicant also indicated that she understood her rights, waived legal counsel, and did not desire to submit statements on her own behalf. 6. The applicant's immediate commander recommended separation from the Army under the provisions of Army Regulation 635-200, paragraph 14-12(b), due to her pattern of misconduct. He also stated that all attempts to rehabilitate her failed. 7. DA Form 3822-R (Report of Mental Status Evaluation), dated 27 January 1997 shows she was seen at the Community Mental Health Clinic as a command referral for administrative action. A licensed clinical psychologist stated her behavior was passive, her mood was flat, with clear and normal thought process and content. It further noted she was mentally responsible, met retention requirements of Army Regulation 40-501 (Standards of Mental Fitness), chapter 3 thereby not warranting disposition through medical channels, and was cleared for any administrative action deemed appropriate by the command. 8. On 5 February 1997, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an entry-level separation - uncharacterized, due to her numerous counts of FTR, breaking restriction, and disobeying orders. 9. Subsequently, the separation authority approved her discharge under the provisions of Army Regulation 635-200, chapter 14-12b, and directed she receive an entry-level separation - uncharacterized. 10. The applicant was discharged on 25 February 1997, under the provisions of Army Regulation 635-200, paragraph 14-12b. Her DD Form 214 confirms her service was characterized as uncharacterized with 8 months and 15 days of net active service. 11. There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations. 12. The applicant provides a copy of her birth certificate, social security card, and Washington State identification card, it is assumed, as proof of her name when she enlisted in the Army and her name at the time of her separation. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It states that a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under Chapter 14. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 14. The applicant enlisted in the Regular Army on 11 June 1996 and the separation process began, on 6 December 1996, which was when her commander notified her he was initiating separation action. On 6 December 1996, the applicant she had completed 5 months and 25 days or 179 days of continuous active duty service. 15. 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 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. 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. 16. The applicant provided a statement on her application that the Board should consider in accordance with the published equity, injustice, or clemency determination 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, her record and length of service, the frequency and nature of her misconduct, the contents of the separation packet, the mental status evaluation and the reason for her separation. The Board the applicant did not complete required training, was not awarded an MOS and remained in an initial entry status at the time of her separation. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct. 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. REFERENCES: 1. Title 10, United States Code, 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3, a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated, except in the following circumstances: (1) When characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) 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. This characterization is authorized when the soldier is separated by reason of selected changes in service obligation, convenience of the Government and Secretarial plenary authority. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions is separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or for the good of service, e. A soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court–martial. f. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 4. 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 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. 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) AR20190014955 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1