IN THE CASE OF: BOARD DATE: 30 November 2022 DOCKET NUMBER: AR20220004479 APPLICANT REQUESTS: upgrade of his uncharacterized discharge (entry level status) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs Letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 he feels he was unjustly treated and discriminated against by his team members because he was a platoon and class leader. They wrote statements on him to make it seem as though he was the problem. The issue/conditions related to his request was harassment. 3. The applicant enlisted in the Regular Army on 5 September 1991 for four years. His military occupational specialty was 63B (Light Wheel Vehicle Mechanic). 4. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) at Fort Jackson, SC on 15 January 1992, for dereliction of performance of duties (sleeping while on fire guard) on or about 3 December 1991 and failing to obey an order on or about 30 November 1991. His punishment consisted of forfeiture of $162.00 a month for 1-month, extra duty, and restriction. 5. The applicant accepted NJP under Article 15 of the UCMJ on 23 January 1992, for * without authority not going to his appointed place of duty on or about 5 January 1992 * without authority, went from his appointed place of duty and missed his fire guard duty on or about 19 January 1992 * failing to obey an order on or about 19 January 1992 * being derelict in the performance of his duties and willfully failed to participate in barracks maintenance on or about 13 January 1992 * his punishment consisted of forfeiture of pay, restriction and extra duty 6. DA Form 4856 (General Counseling Form) shows the applicant was counseled on 4 February 1992, for being recommended for an administrative discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations- Enlisted Personnel), Chapter 11 entry level separation. His commander stated further conduct of this nature by the applicant might result in punitive action under UCMJ or separation. 7. The applicant's immediate commander notified the applicant on 4 February 1992 that she was initiating actions to separate him under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 11. The specific reasons for her proposed action were that the applicant had clearly demonstrated that he lacked the minimum requirements to be a functional Soldier. He had failed to repair on numerous occasions. He had no respect for the policies in the company. Due to his reoccurring misconduct, she recommended he be discharge from the U. S. Army. He was advised of his rights. 8. The applicant acknowledged receipt of the separation notification on the same date. He waived undergoing a medical examination. 9. Having been advised by counsel on 4 February 1992. He acknowledged he understood that if approved he would receive an entry level separation with uncharacterized service. He understood that he would not be permitted to apply for reenlistment in the U. S. Army within 2 years of his separation. He did desire to make statements in his own behalf, and he did not request a separation physical. 10. In the applicant’s statement to his commander, dated 6 February 1992, he states he was shocked at what was being done to him. He wanted to see the commander face to face to explain how much it meant for him to be in the Army. He loved the Army. He went to the cadence club when he was not supposed to and from then on, the drill sergeant told him he wasn’t the class leader anymore and he was sad. It seemed as if the drill sergeant hated him and had his so-called friends turn against him. He was only 18 years old and being put out of the army for which he thought was unequal opportunity because they were a lot older than him, and they did the exact same thing he did. His grades for school were at least an 88 average and his physical fitness test scores were rather high too. He just didn’t understand. He was begging for just another chance to prove that he could fight for his country in a way that he knew would make the commander proud. 11. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 11. The applicant described as recommended or separation due to failure to meet minimum standards or failure: sociological (includes discipline). The chain of commander approved. 12. The approval authority approved the separation recommendation on 13 February 1992 and the character of service was uncharacterized. 13. The applicant was discharged from active duty on 21 February 1992. His DD Form 214 (Certificate of release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-3a, for entry level status. His characterization of service was uncharacterized. It also shows he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 14. On 1 August 2022, by letter, the U.S. Army Criminal Investigation Command (USACID) advised regarding a request for a sanitized copy of information from CID, that a search of the Army criminal file indexes utilizing the information provided revealed no Military Sexual Assault/Trauma records pertaining to the applicant. The records at their center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals. 15. The applicant provides a VA summary of benefits letter, which shows the VA has determined his service was honorable for VA purposes. 16. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The available evidence shows the applicant consulted with counsel and was discharged under the provisions of Army Regulation 635-200, Chapter 11 which provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. b. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 17. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his uncharacterized discharge to honorable. The applicant contends his misconduct was related to harassment. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 5 September 1991; 2) He receive two nonjudicial punishments for multiple incidents of dereliction of duty, not reporting to his appointed place of duty, and failure to obey an order between 15-23 January 1992; 3) He was discharged on 21 February 1992 with a chapter 11-3a, uncharacterized. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also reviewed. d. The applicant reported being treated “unjustly and discriminated against” while in Basic Training. In the applicant’s statement to his commander, dated 06 February 1992, he reported feeling his drill sergeants “hated him” and he felt his discharge from the Army was an “unequal opportunity because they were a lot older than him, and they did the exact same thing he did.” The applicant did not report sexual harassment/trauma while on active service. In addition, on 1 August 2022, U.S. Army Criminal Investigation Command (USACID) provided a written statement that were no records of Military Sexual Assault/Trauma records pertaining to the applicant. e. A review of JLV shows the applicant is 90-percent service-connected for multiple medical issues but does not include any behavioral health conditions. He was seen for symptoms of depression at the VA in October 2016. He received outpatient group behavioral health treatment, which he found helpful. There was no mention of behavioral health symptoms related to his experiences while in active service. f. Based on the available information, it is the opinion of the Agency BH Advisor the applicant did not have a condition or experience that mitigated his misconduct. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant did report harassment while in Basic Training. However, he did not provide specific details of an incident of harassment. There was also no direct evidence to support he experienced harassment while in active service. 2. Did the condition exist, or experience occur during military service? Yes. The applicant did assert he experienced harassment during active military service. 3. Does the condition or experience actually excuse or mitigate the discharge? Partially. In accordance with the liberal consideration memo, the applicant’s contention alone is sufficient to be considered by the board in reaching its final determination. However, there was insufficient evidence to support the applicant’s assertion that he had an experience or condition that mitigated his misconduct. His claim of harassment was vague, and there is no evidence of a corollary behavioral health conditions in the applicant’s report, military service documentation, or his medical documentation. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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. 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. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding the applicant did not have a condition or experience that mitigated his misconduct. The Board noted, the applicant did not provide specific details of an incident of harassment. There was also no direct evidence to support he experienced harassment while in active service. The Board determined there was insufficient evidence to support the applicant’s assertion that he had an experience or condition that mitigated his misconduct. 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. 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, U.S. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3 states 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. b. Paragraph 3-7a provides 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. c. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in an entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. 3. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (UOTHC) and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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) AR20220004479 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1