IN THE CASE OF: BOARD DATE: 1 September 2020 DOCKET NUMBER: AR20200000576 APPLICANT REQUESTS: The applicant requests the upgrade of 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 214 (Certificate of Release or Discharge from Active Duty 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 he wanted to remain in the Army, and he tried to be a good Soldier. He asserts he made no mistakes and no errors; he was not a troublemaker. 3. The applicant's service records show: a. On 29 December 1982, the applicant enlisted into the Regular Army for 3 years; he was 20 years old. Following completion of basic combat training, the applicant transferred to Fort Knox, KY to complete advanced individual training; he arrived on or about 8 March 1983. b. The applicant's service record contains two DA Forms 4856 (General Counseling Form), respectively dated 9 March and 7 April 1983: (1) 8 March 1983 – Staff Sergeant (SSG) L__ J. S__ stated the applicant had arrived at the unit indicating he was having personal problems involving his wife and daughter. The applicant said felt he might lose his daughter if he remained on active duty; SSG L__ J. S__ referred the applicant to a chaplain. (2) 7 April 1983 – Applicant's first sergeant (1SG) indicated the applicant had come to him asking about a Trainee Discharge Program (TDP) separation; the applicant said his wife had a good job and did not want to move. The 1SG urged the applicant to continue talking with his wife and recommended the applicant bring her to Fort Knox so she could see what the Army had to offer. * Applicant stated his family problems came first, and he felt he would be unable to give the Army his best; he declared he did not want to lose his family * 1SG later indicated the applicant's wife came to Fort Knox, but remained only 18 hours; in addition, the 1SG indicated the school had called stating the applicant was doing badly; the applicant said his wife had told him he must either get out of the Army or she would divorce him c. On 15 April 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for departing his unit without authority on 1 April 1983; on the DA Form 2627-1 (Summarized Record of Proceedings under Article 15, UCMJ), the commander stated the applicant's action was a "failure to repair" (i.e. failure to be at the appointed place of duty at the time prescribed). d. On 20 April 1983, SSG L__ J. S__ prepared a DA Form 4856 in which he stated the applicant was experiencing more marital problems. The applicant had gone home for the weekend; while there, the applicant's wife had given him an ultimatum: either get out of the Army or face divorce. The applicant's wife said she was unwilling to relocate due to her concerns about job security and an inability to care for their child. Additionally, SSG L__ J. S__ noted the school had sent the applicant back to him because the applicant showed a lack of concentration. The applicant said he felt he could not perform effectively during training because of the pressures he felt from his wife; he had considered going AWOL but did not want to risk facing NJP action again. SSG L__ J. S__ again referred the applicant to the chaplain. e. On 22 April 1983, Mental Hygiene prepared a report of psychiatric evaluation pertaining to the applicant; a Social Service Assistant opined the applicant was experiencing depression due to marital problems, and it was unlikely the applicant would become a productive Soldier. The Mental Hygiene official cleared the applicant for any administrative action deemed appropriate by the applicant's command. f. Also on 22 April 1983, a chaplain completed a DA Form 4856, in which he discussed the applicant's family problems. The chaplain stated the applicant's wife had said she would not be joining the applicant, regardless of where he might be stationed; this essentially meant she would be divorcing the applicant. The applicant felt incapacitated by his wife's threat of divorce and the prospect of losing his 3 1/2 year old child. The chaplain remarked the applicant displayed strong dependency needs and seemed to completely rely on his wife for direction; because of this, the chaplain opined the applicant would continue to be a liability to the Army. The applicant concurred with the chaplain's comments. g. On 3 May 1983, the applicant's commander advised him, via memorandum, of his intent to separate the applicant under chapter 11 (Entry Level Status Performance and Conduct (Trainee Discharge Program)), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander's stated basis was the applicant's unpreparedness to concentrate on his military commitments; the commander elaborated, stating the applicant was deeply influenced by his wife's desires, and those desires did not appear to complement a military career. Further, the applicant had shown a lack of concentration in school, had accepted NJP for failing to be at his appointed place of duty at the time prescribed, and both Mental Hygiene and the Brigade Chaplain had concluded the applicant lacked the desire to become a productive Soldier. h. At some point after receiving the 3 May separation notification, but before 5 May 1983, the applicant consulted with counsel and acknowledged counsel had advised him of the reasons for the commander's proposed separation. The applicant additionally affirmed he understood he would receive an uncharacterized character of service, stated he did not desire counsel, and opted not to submit statements in his own behalf. i. On 5 May 1983, the separation authority approved the commander's recommendation and directed the applicant's discharge with an uncharacterized character of service. The separation authority stated he had personally interviewed the applicant and affirmed, because of the applicant's outside pressures and resulting personal problems, the applicant would not be able to cope with military life. On 10 May 1983, the applicant was discharged accordingly; his DD Form 214 shows he completed 4 months and 12 days of his 3-year enlistment contract. He was awarded or authorized two marksmanship qualification badges. 4. The applicant asserts, in effect, he should never have been discharged because he actually wanted to remain in the Army; he maintains he was a good Soldier who made no errors and was not a troublemaker. a. During the applicant's era of service, commanders were to initiate separation action under chapter 11 when entry-level Soldiers demonstrated unsatisfactory duty performance, as evidenced by their inability to adapt socially or emotionally to military life. The Soldier had to have voluntarily enlisted into the Regular Army, completed no more than 180 days of active duty and had no prior service. b. The regulation defined entry-level as the first 180 days of a Soldier's continuous active military service. Soldiers separated during entry-level status normally received an uncharacterized character of service; however, the Secretary of the Army could issue an honorable discharge when clearly warranted by the Soldier's personal conduct or performance of duty. c. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The applicant requests an upgrade of his characterization of service from uncharacterized to honorable. After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. 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, his DD Form 214 properly shows his service as uncharacterized. 2. 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. 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 the administrative separation of enlisted personnel. 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 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). A separation is an entry level status separation with uncharacterized service if processing is initiated while the Soldier is in an entry level status (i.e. the 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. Per chapter 11, commanders were to initiate separation action when entry-level Soldiers demonstrated unsatisfactory duty performance, as evidenced by their inability to adapt socially or emotionally to military life. The Soldier had to have voluntarily enlisted into the Regular Army, completed no more than 180 days of active duty and had no prior service. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000576 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000576 7 ABCMR Record of Proceedings (cont) AR20200000576 5