IN THE CASE OF: BOARD DATE: 4 August 2021 DOCKET NUMBER: AR20210006945 APPLICANT REQUESTS: * Upgrade of his uncharacterized character of service to general under honorable conditions * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 believes, from the start of his active duty service until his discharge, he served honorably and to the best of his ability; his separation was due to no cause of his own. a. At the time, he did not recognize the severity of his knee condition, and he ultimately required three surgeries to repair his knee. He had served 4 years in Junior Reserve Officers' Training Corps (JROTC), and, when he left, he was an officer; he immediately enlisted into the Army and never had any disciplinary actions taken against him. b. The applicant contends he is not seeking benefits from the government; he simply wants a "proper discharge title." He points out that he continues to serve, in his capacity as a funeral director, in that he offers little to no charge for Veterans' funeral services. In addition, he has served as a police officer, where he maintained an honorable and spotless record. 3. The applicant's service records show: a. On 21 May 2002, the applicant's high school awarded the applicant a Department of the Army Certificate of Training, which showed he had successfully completed 3 years of U.S. Army JROTC. b. On 23 May 2002, the applicant enlisted into the NY Army National Guard (NYARNG) for 8 years. On 20 August 2002, the applicant entered initial active duty for training (IADT) to complete initial entry training (IET) at Fort Jackson, SC. c. On 3 September 2002, a medical evaluation board (MEB) determined the applicant's post-operative knee pain failed medical retention standards, as outlined in paragraph 3-14g (1) (Miscellaneous Conditions of the Extremities – Joints), Army Regulation (AR) 40-501 (Standards of Medical Fitness). The MEB's associated narrative summary stated the applicant had complained of severe right knee pain, which would definitely prevent him from completing his military duties; the applicant was "poorly motivated to even attempt to continue with conservative therapy." The MEB recommended the applicant's separation, under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5 (Separation for Non- Service Aggravated, EPTS (existed prior to service) Conditions upon Soldier's Waiver of PEB (physical evaluation board) Evaluation). d. On 4 September 2002, the following occurred: (1) The applicant agreed with the MEB's findings and recommendations. (2) The U.S. Army Reserve (USAR)/ARNG Liaison Noncommissioned Officer (NCO) counseled the applicant regarding the applicant's options, based on the MEB's findings and recommendations. The USAR/ARNG Liaison NCO explained the applicant's separation would result in the applicant's loss of medical and educational benefits, along with any other entitlements related to the applicant's enlistment. The USAR/ARNG Liaison NCO affirmed the applicant understood the probable type and character of discharge he (the applicant) would receive. (3) The applicant requested discharge for physical disability based on the MEB's findings and recommendations; the applicant acknowledged the MEB considered him unqualified for retention due to his EPTS medical condition. The applicant further affirmed he understood he was entitled to have his case considered by a PEB, but elected not to exercise that right. The applicant indicated, "If this application is approved, I understand I will be separated by reason of EPTS physical disability. I also understand that I will receive a discharge in keeping with the character of my service as decided by the officer designated to affect my separation." e. On 12 September 2002, the separation authority approved the applicant's separation, per chapter 5, AR 635-40, and directed the applicant's discharge with an uncharacterized character of service; on 20 September 2002, orders discharged the applicant accordingly. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 month and 1 day of net active duty service; item 9 (Command to which Transferred) indicates, following separation, the applicant transferred back to his NYARNG unit. The DD Form 214 lists no awards or decorations. f. On 20 September 2002, the NYARNG discharged the applicant with an uncharacterized character of service; the listed separation authority was National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-27 (State ARNG Discharge) (l) (Discharge for Other Reasons as Stipulated by State Law) and (m) (Discharge for Placement on the Permanent Disability Retired List). 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The applicant argues, from the start of his active duty service until his discharge, he served honorably and to the best of his ability; he has continued to serve after his separation in his capacity as a funeral director and during his service as a police officer. His separation resulted from a knee condition that he had incurred prior to entering the military. a. AR 635-40, in effect at the time, stated, per accepted medical principals, certain medical conditions, when discovered, led to the conclusion they must have existed prior to the Soldier entering military service (EPTS). (1) Chapter 5 stated it authorized Soldiers with EPTS conditions, who had been on active duty for more than 30 days, and who were eligible for referral into the Army's DES due to their failure of medical retention standards, to waive evaluation by a PEB and request separation. (2) Normally, Soldiers separated under the provisions of chapter 5 received an honorable discharge; however, if the Soldier was in an entry-level status at the time of processing, the DD Form 214 could describe his/her service as uncharacterized. (3) According to AR 635-200 (Personnel Separations – Enlisted Personnel), entry-level status for ARNG Soldiers began upon enlistment, and continued for 180 days after the start of training. On a case-by-case basis, the Secretary of the Army (or his representative) could authorize an honorable character of service to entry-level Soldiers when unusual circumstances involving personal conduct or duty performance clearly warranted such action. b. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military service record and documents provided by the applicant. 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. Soldiers are authorized and honorable discharge while in entry-level status only if they complete their active duty schooling and earn their MOS. The Board found no error or injustice. The applicant did not complete training and was released from active duty due to his physical disability based on the MEB's findings and recommendations which considered him unqualified for retention due to his medical condition that existed to prior service (EPTS). As such, his DD Form 214 properly shows the appropriate characterization of service as uncharacterized. 2. An uncharacterized discharge is not derogatory; it is recorded when a Soldier has not completed more than 180 days of creditable continuous active duty prior to initiation of separation. It merely means the Soldier has not served on active duty 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. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 635-40, in effect at the time, stated: a. Per accepted medical principals, certain medical conditions, when discovered, led to the conclusion they must have existed prior to the Soldier entering military service (EPTS). b. Chapter 5 (Separation for Non-Service Aggravated, EPTS Conditions upon Soldier's Waiver of PEB Evaluation) authorized Soldiers with EPTS conditions, who had been on active duty for more than 30 days, and who were eligible for referral into the Army's DES due to their failure of medical retention standards, to waive evaluation by a PEB and request separation. Normally, Soldiers separated under the provisions of chapter 5 received an honorable discharge; however, if the Soldier was in an entry-level status at the time of processing, the DD Form 214 could describe his/her service as uncharacterized. 3. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. 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. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities issued a general discharge to Soldiers 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 received an uncharacterized character of service. The regulation considered a separation as entry level when processing began during the Soldier's first 180 days of continuous active duty; for ARNG Soldiers, entry-level status started upon enlistment, and continued for 180 days after the start of training. On a case-by-case basis, the Secretary of the Army could issue an honorable character of service to entry-level Soldiers when clearly warranted by unusual circumstances involving personal conduct or duty performance. 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. 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. 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006945 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006945 6 ABCMR Record of Proceedings (cont) AR20210006945 5