IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210015383 APPLICANT REQUESTS: The applicant requests the upgrade of his uncharacterized character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Personnel Records Center (NPRC) letter * Five DD Forms 689 (Individual Sick Slip) and an Ordnance School Student Absentee Authorization * Permanent Change of Station Orders 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, in effect, his advanced individual training (AIT) unit separated him, not because of any concerns about his conduct, but rather due to medical issues (pain in his back and both legs) resulting from a bullet lodged in his left tibia. a. Within the last year, the applicant asked NPRC for a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); the reason for separation listed on the DD Form 214 did not match the actual quality of his service, in that his chain of command never stated his duty performance was a problem. The only conduct-related issue occurred once, when he failed to return on time after missing a flight; his leadership punished him with restriction and extra duty, but this was totally unrelated to his separation action. b. The applicant's chain of command told him he would either receive a medical or general discharge under honorable conditions, and he opted for the general discharge so that the Army could separate him as soon as possible; until he saw his DD Form 214, he believed the Army had given him a general discharge. The applicant contends he volunteered to serve his country, and the Army discharged him with only limited options. Since his separation, he has continued to serve by working as an occupational therapy assistant in his State's department of corrections; he has not been involved in any criminal conduct. c. In support of his request, the applicant submits documents that show he received medical treatment during AIT. The documents include five DD Forms 689 that indicate, between February and April 1996, the applicant had knee pains whenever he bent his knee or walked, and the medical authority stated the applicant's "lower left leg is sore; possible fracture...gunshot wound." On 3 April 1996, the medical authority issued the applicant a temporary physical profile and recommended the applicant's AIT unit consider administrative discharge. 3. The applicant's service records show: a. On 1 November 1995, the applicant enlisted into the Regular Army for 3 years; he was 21 years old. On 6 November 1995, the applicant extended his enlistment by 29 weeks to meet the enlistment standards stated in Army Regulation (AR) 601-210 (Personnel Procurement – Regular Army and Army Reserve Enlistment Program). After successful completion of basic combat training, at Fort Knox, KY, orders transferred the applicant to Aberdeen Proving Ground (APG), MD to attend AIT in military occupational specialty 63W (Wheel Vehicle Repairer). The applicant arrived at APG, on or about 19 January 1996. b. On 3 April 1996, a military doctor issued the applicant a temporary profile and recommended the applicant's AIT unit consider administrative discharge. On 17 April 1996, a noncommissioned officer (NCO) counseled the applicant, using a DA Form 4856 (General Counseling Form). (1) The NCO stated, "[Applicant]'s preexisting medical conditions makes him unfit for service." The NCO went on to state the applicant had demonstrated an inability to adapt to the rigors of military life because of his chronic pain and an inability to endure long periods of exertion or to perform even simple Soldier tasks. (2) The NCO cited the military doctor's separation recommendation, and noted the lingering effects of the applicant's gunshot wounds would put a burden on any unit to which the Army subsequently assigned the applicant. The NCO then explained that a separation under the provisions of chapter 11 (Entry-Level Status Performance and Conduct), AR 635-200 (Personnel Separations – Enlisted Personnel) would return the applicant to civilian life and not result in any discrimination or negative effects for the applicant. Given the applicant's medical condition and the applicant's strong desire for separation from the Army, the NCO stated separation action would begin immediately. c. On 26 April 1996, the applicant's AIT commander informed him, via memorandum, of his intent to separate the applicant per paragraph 11-3a (3) (a) (Separation Policy – Cannot or Will Not Adapt to Military Life), AR 635-200. The commander stated the reason for his action was his determination the applicant could not or would not adapt socially or emotionally to military life, and he advised the applicant of his recommendation that the applicant receive an uncharacterized character of service; the commander noted, however, the final decision rested with the separation authority. On 26 April 1996, the applicant acknowledged receipt of the commander's notification. d. In an undated endorsement, the applicant affirmed "consulting counsel" had advised him of the basis for the contemplated separation action and advised him of his rights and the effect of waiving those rights. The applicant indicated he elected not to submit statements in his own behalf and not to request consulting counsel. There is no counsel's signature in the part of the document where a counsel would normally sign. e. On an unknown date subsequent to 26 April 1996, the applicant's AIT commander submitted his separation recommendation, using a pre-formatted memorandum. In the paragraph where the form asked the commander to state the specific, factual reasons for the action recommended, the commander stated the applicant could not or would not adapt socially or emotionally to military life; in addition, the applicant was unable to perform simple Soldier tasks due to the lingering effects of a gunshot wound. Other disposition was infeasible due to the foregoing reasons, and, where the form asked if any other medical or other data merited consideration, the commander wrote, "Soldier cannot endure long periods of exertion or even perform simple Soldier tasks due to the lingering effects of a gunshot wound. Soldiers was constantly on profile." f. On 6 May 1996, the separation authority approved the commander's separation recommendation and directed the applicant's uncharacterized separation; on 17 May 1996, orders discharged the applicant accordingly. The applicant's DD Form 214 shows he completed 6 months and 17 days of his 3-year, 29-week enlistment contract. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) reflects the award of the National Defense Service Medal and a marksmanship qualification badge. The separation authority is "AR 635-200, PARAGRAPH 11-3A," and the narrative reason for separation is "ENTRY LEVEL PERFORMANCE AND CONDUCT." g. On 14 December 2021, the Army Review Boards Agency (ARBA) requested the applicant provide medical documents to support his claims; the applicant did not provide a response. 4. The applicant argues his advanced individual training (AIT) unit unfairly separated him due to medical issues resulting from a bullet lodged in his left tibia; despite the wording of his narrative reason for separation, the applicant's conduct and performance were never an issue. His chain of command gave him the impression he would either receive a medical or general discharge, and he opted for the general discharge so that the Army could separate him as soon as possible; however, when he obtained a copy of his DD Form 214, it stated his service was uncharacterized. a. During the applicant's era of service, commanders could, per chapter 11, AR 635-200, initiate separation action against entry-level Soldiers who demonstrated they were not qualified for retention by not adapting socially or emotionally to military life, not meeting minimum standards for the successful completion of training, and/or not responding to counseling (as recorded on DA Forms 4856 (General Counseling Form). (1) Paragraph 11-4 (Counseling and Rehabilitation Requirements) stated it was essential to fulfill the regulation's counseling and rehabilitation requirements because military service was a calling different from any civilian occupation; commanders should not separate a Soldier, using entry level performance and conduct as the sole basis, unless efforts at rehabilitation had been made. (2) The regulation also required commander to use of the notification procedure when advising the Soldier of the contemplated separation action. The notification procedure involved the following: * Giving the Soldier a written notice of the proposed separation that specified the type of separation and the reason for the commander's action * Advising the Soldier of his or her rights, under the regulation's separation process, which included: consulting with military counsel, submitting statements in his/her own behalf, receiving copies of documents sent to the separation authority, and waiving, in writing, the aforementioned rights * The Soldier was to indicate on an "Election of Rights" document whether he/she had consulted with counsel and was or was not submitting matters for the separation authority's consideration (3) Effective 1 October 1982, a revision of AR 635-200 mandated the issuance of uncharacterized characters of service to Soldiers separated while in an entry-level status; for Regular Army Soldiers, entry-level status began upon their entrance on active duty and ended after 180 days of continuous active duty. The regulation stated the Secretary of the Army could issue an honorable character of service, on a case-by- case basis, when clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. b. In reaching its determination, the Board can consider the applicant's petition, his service record, as well as his statements, in light of the published guidance on equity, injustice, or clemency. 5. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, an ABCMR denial (28 January 1998, AC96-10784A), the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of her 17 May 1996 uncharacterized discharge. She states: “I was separated from my company and AIT {advanced individual training} because of a bullet lodged in my left tibia that was causing issues with both legs and back. I was told that I would be separated from service either through medical discharge or through general discharge. I chose general discharge to be separated as soon as possible, there was no conduct issue concerning my separation.” b. The Record of Proceedings and previous denial detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 1 November 1995 and was discharged on 17 May 1996 under provisions provided in paragraph 11-3a of AR 635-200, Personnel Separations – Enlisted Personnel (17 September 1990), for falling below entry level performance and conduct standards. c. On an Individual Sick Slip (DD form 689) dated 18 March 1996 is written “lower left leg is sore, possible fracture gunshot wound.” d. On 17 April 1996, the applicant was counseled on a pre-existing medical condition which had made him unfit for continued service: (1) “I am counseling you on your inability to adapt to the rigors of military life. Due to your chronic pain and inability to endure long periods of exertion or even perform simple soldier tasks you are not fit for military service. The lingering effects of your gunshot wounds put a burden on any unit you are assigned to. (2) Being on profile constantly and being unable to deploy or perform your job is unacceptable. Dr. . recommends an administrative discharge and in my opinion that would be best for you and the military. A chapter 11 is an administrative discharge and when you return to civilian life it will not cause any discrimination or have any negative effects on your life. Along with your strong desire to be separated and your medical condition separation under chapter 11, AR 635-200 will begin immediately.” e. The applicant’s company commander subsequently notified the applicant of the initiation of separation action under paragraph 11-3a(3)(a) on 26 April 1996. This paragraph is used when a Soldier “Cannot or will not adapt socially or emotionally to military life.” In his recommendation the applicant be discharged from the United States Army under provisions in chapter 11 of AR 635-200, he stated his specific reason for the proposed action: “PVT {Applicant} cannot or will not adapt socially or emotionally to military life. The soldier cannot perform simple soldier tasks. Soldier's lingering effect of a gunshot wound prevents him from fully performing his duties as a soldier.” f. The company commander’s recommendation for discharge was approved by the battalion commander on 9 May 1996. g. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. Through no fault of his own, he simply had a medical condition which was, unfortunately, not within enlistment standards. h. It is the opinion of the Agency Medical Advisor that neither a discharge upgrade nor a referral to the Disability Evaluation System is warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation and published Department of Defense guidance for liberal determinations requests for upgrade of his characterization of service. 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. Evidence in the record shows the applicant was unable to adapt to military life. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official that neither a discharge upgrade nor a referral to the Disability Evaluation System is warranted. As a result, there is no basis for granting the applicant's request for upgrade of his uncharacterized character of service or referral of his case to the DES. Therefore, the Board denied relief. 2. Referral to the IDES occurs when a Soldier has one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. The DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 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. The regulation authorized separation authorities to issue 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). Effective 1 October 1982, a revision of AR 635-200 mandated the issuance of uncharacterized characters of service to Soldiers separated while in an entry-level status; for Regular Army Soldiers, entry- level status began upon their entrance on active duty and ended after 180 days of continuous active duty. The regulation stated the Secretary of the Army could issue an honorable character of service, on a case-by-case basis, when clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. d. Chapter 11 (Entry Level Status Performance and Conduct). This provision permitted commanders initiate separation action against entry level Soldiers who demonstrated they were not qualified for retention based on not adapting socially or emotionally to military life, not meeting minimum standards prescribed for successful completion of training, and/or not responding to counseling (as recorded on DA Forms 4856 (General Counseling Form). (1) Paragraph 11-4 (Counseling and Rehabilitation Requirements) stated it was essential to fulfill the regulation's counseling and rehabilitation requirements because military service was a calling different from any civilian occupation; commanders should not separate a Soldier, using entry level performance and conduct as the sole basis, unless efforts at rehabilitation had been made. (2) The regulation also stipulated commander's use of the notification procedure when advising the Soldier of the contemplated separation action. The notification procedure involved the following: * Giving the Soldier a written notice of the proposed separation that specified the type of separation and the reason for the commander's action * Advising the Soldier of his or her rights, under the regulation's separation process, which included: consulting with military counsel, submitting statements in his/her own behalf, receiving copies of documents sent to the separation authority, and waiving, in writing, the aforementioned rights * The Soldier was to indicate on an "Election of Rights" document whether that Soldier had consulted with counsel and was or was not submitting matters on his/her own behalf 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) AR20210015383 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1