IN THE CASE OF:

		BOARD DATE: 21 June 2023

		DOCKET NUMBER: AR20220010616


APPLICANT REQUESTS:  In effect, the following corrections:

*	DD Form 214 (Certificate of Release or Discharge from Active Duty) dated
3 September 1999, to show his service is characterized as honorable in lieu of 
uncharacterized 
*	NGB Form 22 (Report of Separation and Record of Service) dated 7 December 
2000, to show his service is characterized as honorable and he was retired due 
to a physical disability
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 
*	NGB Form 22 (Report of Separation and Record of Service)

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 has two discharges, in effect:

     a.  A DD Form 214 showing service from 14 March to 3 September 1999 is 
uncharacterized.

     b.  An NGB Form 22 showing service from 23 January 1999 to 7 December 2000, is 
characterized as general [under honorable conditions].

3.  Additionally, he states a judge looked at him as a deserter and liar because he had 
two discharges. He was aware of the general discharge, under honorable conditions 
[NGB Form 22], which was due to his broken wrist and his wife’s pregnancy issues. He 
believes this [NGB Form 22] should show he was honorably discharged due to medical 
reasons. 

4.  Two discharges existed. One was lost in a fire. His DD Form 214 should reflect he 
was honorably discharged. He also annotated his application to show he suffers from 
post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and other mental 
health conditions.

5.  The available evidence shows the applicant enlisted in the Army National Guard 
(ARNG) for a period of 8 years on 23 January 1999, in the rank of private/pay grade 
E-1.

6.  His Personnel Qualification Record (PQR) shows:

*	Orders 015-05, ordered him to initial active duty for training (IADT) for 23 weeks, 
with a report date of 14 March 1999
*	On 14 March 1999, he reported to Fort Jackson, SC, for basic combat training
*	On 4 June 1999, he reported to Fort Sill, OK, for advanced individual training
*	On 2 September 1999, he was awarded military occupational specialty (MOS) 
13P (Multiple Launch Rocket System (MLRS) Operations/Fire Direction 
Specialist)

7.  The available evidence contains a DD Form 214 that was prepared at the time of 
separation showing on 3 September 1999, he was released and transferred to the 
ARNG. He completed 5 months and 20 days of creditable active service. His awards 
are listed as the Army Service Ribbon, Marksman Marksmanship Qualification Badge 
with Rifle and Grenade Bars. His DD Form 214 reflects in:

*	Primary Specialty, MOS 13P “MLRS Lance OP FD SP”
*	Type of Separation, Release from Active Duty Training
*	Character of Service, Uncharacterized
*	Separation Authority, Army Regulation (AR) 635-200, Chapter 4
*	Narrative Reason for Separation, Completion of Required Active Service

8.  The facts and circumstances surrounding the applicant's Oklahoma ARNG service 
from 23 January 1999 to 7 December 2000 is not available for review with this case. 
However, the available evidence does contain an NGB Form 22 that reflects in:

*	Net Service This Period, 1 year, 10 months, and 15 days
*	Authorization and Reason, paragraph 8-26k, National Guard Regulation 600-200, 
Unsatisfactory Participant Per AR 135-95
*	Character of Service, General
*	Type of Certificate Used, 56a
*	Reenlistment Eligibility, RE3

9.  There are no medical documents available. The applicant was given an opportunity 
to provide medical documents, however, he did not respond during the allotted 
timeframe.

10.  In regard to the applicant's request for a personal appearance, Army Regulation 
15-185, 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.  

11.  AR 635-8 (Separation Processing and Documents) states when a Reserve 
Component (RC) Soldier successfully completes IADT the character of service is 
honorable unless directed otherwise by the separation approval authority.

12.  The applicant provided his DD Form 214 showing completion of service from 
14 March to 3 September 1999 and award of an MOS, he also provided an NGB Form 
22 summarizing his ARNG service. His submissions were provided to the Board in its 
entirety.

13.  In regard to the DD Form 214, he received upon completion of initial active duty for 
training (IADT):

     a.  Regulatory guidance stated an uncharacterized character of service was given to 
separating Soldiers in an entry-level status; Soldiers remained in an entry-level status 
until they had completed more than 180 days of continuous active service. However, the 
current separation regulation states RC Soldiers will receive an honorable character of 
service (unless directed otherwise by the separation approval authority) after they have 
completed IADT, been awarded an MOS, and the RC Soldier then reports for duty at a 
follow-on unit of assignment.  

     b.  The available evidence shows the applicant was ordered to IADT, he completed 
5 months and 20 days of active service, and he was awarded an MOS; following 
separation, he returned to the ARNG. It would be appropriate to consider his character 
of service as honorable, given current guidance, and in the interest of equity. 

14.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service. The Army disability 
rating is to compensate the individual for the loss of a military career. The VA does not 
have authority or responsibility for determining physical fitness for military service. The 
VA may compensate the individual for loss of civilian employability.

15.  Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation 
for disabilities which were incurred in or aggravated by active military service. However, 
an award of a VA rating does not establish an error or injustice on the part of the Army.  

16.  Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards 
disability ratings to veterans for service-connected conditions, including those conditions 
detected after discharge. As a result, the VA, operating under different policies, may 
award a disability rating where the Army did not find the member to be unfit to perform 
his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her 
lifetime, adjusting the percentage of disability based upon that agency's examinations 
and findings.

17.  MEDICAL REVIEW:

    a.  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, 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, the Army Aeromedical Resource Office (AERO), and/or the Interactive 
Personnel Electronic Records Management System (iPERMS).  The ARBA Medical 
Advisor made the following findings and recommendations:  
    b.  The applicant is applying to the ABCMR requesting a discharge upgrade, and in 
essence, a referral to the Disability Evaluation System.  He states:
“I was looked at by the judge as a deserter and liar because I had two 
discharges!  One I knew of, general under honorable (due to my broken wrist and 
wife’s pregnancy issues) and a dishonorable!  I want it to be an honorable and 
medical, as that was why I got out!  ”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The applicant’s Report of Separation and Record of Service 
(NGB Form 22) for the period of Service under consideration shows the former drilling 
Guardsman enlisted in the Army National Guard on 23 January 1999 and received a 
general, under honorable conditions discharge from the Oklahoma Army National Guard 
(OKARNG) on 7 December 2000 under the provisions in paragraph 8-26k of NGR 600-
200, Enlisted Personnel Management: Unsatisfactory participation  

    d.  No medical documentation was submitted with the application.  His service 
predates AHLTA and JLV shows he is not registered with the VA. 
    e.  There is no evidence the applicant had any medical condition which would have 
failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge; or 
that prevented the applicant from attending drills and/or maintaining contact with his 
unit.  Thus, there was no cause for referral to the Disability Evaluation System.  
Furthermore, there is no evidence that any medical condition prevented the applicant 
being able to reasonably perform the duties of his office, grade, rank, or rating prior to 
his discharge.
    f.  It is the opinion of the ARBA Medical Advisor that a referral to the DES is 
unwarranted.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was 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 and clemency 
determinations requests for upgrade of her characterization of service. Upon review of 
the applicant’s petition, available military records and the medical review the Board 
concurred with the advising official finding that a referral of his case to the Disability 
Evaluation System (DES) is not warranted. The Board determined DES compensates 
an individual only for service incurred 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.

2.  The Board determined the facts and circumstances surrounding the applicant's 
Oklahoma ARNG service from 23 January 1999 to 7 December 2000 is not available for 
review and the burden of proof rest with the applicant to show an error or injustice that 
would warrant amending his discharge from general under honorable conditions to 
honorable. However, the Board determined based on regulatory guidance, when a RC 
Soldier successfully completes IADT, the character of service is honorable. The Board 
noted, the applicant completed his initial active-duty training and was awarded a military 
occupational specialty (MOS) 13P (Multiple Launch Rocket System (MLRS) 
Operations/Fire Direction Specialist). Based on this, the Board agreed the applicant’s 
DD Form 214 covering the period ending 3 September 1999 should be amended with 
the following administrative correction: item 24 (Character of Service) to show 
“Honorable” instead of “Uncharacterized.” Based on this, the Board granted partial 
relief.
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

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.	The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief. As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by amending 
the applicant’s DD form 214 to show in: item 24 (Character of Service) Honorable” 
instead of Uncharacterized.

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief. As a result, the Board recommends denial of so much of 
the application that pertains to amending the applicant’s NGB Form 22 to show his 
service is characterized as honorable and he was retired due to a physical disability.

	 
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):  N/A
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 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
Paragraph 2-11 contains guidance on ABCMR hearings, and it states that applicants do 
not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant 
a formal hearing whenever justice requires.

3.  AR 635-200, in effect at the time of his separation, stated an uncharacterized 
separation is an entry-level separation. For Soldiers ordered to IADT, entry-level status 
terminates 180 days after beginning training. 

4.  AR 635-8 currently in effect prescribes the transition processing function of the 
military personnel system.  The regulation contains guidance stating for block 24 
(Characterization of Service) the correct entry is vital since it affects a Soldier’s eligibility 
for post-service benefits. Characterization or description of service is determined by 
directive authorizing separation; when a RC Soldier successfully completes IADT the 
character of service is honorable unless directed otherwise by the separation approval 
authority. 

5.  AR 635-200 also provides the policies and procedures for the separation of enlisted 
personnel.

     a.  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.

     b.  A general discharge is a separation from the Army under honorable conditions. 
When authorized, it is issued to a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

6.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) 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 
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.

7.  On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole or in part to: mental health conditions, including PTSD; 
Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal 
consideration to Veterans petitioning for discharge relief when the application for relief is 
based in whole or in part to 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.

8.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military DRBs and 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.  
9.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability. The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 
(Disability Evaluation for Retention, Retirement, or Separation).
     a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical 
profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention 
Board; and/or they are command-referred for a fitness-for-duty medical examination.
     b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB. The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his/her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether or not a service 
member is fit for duty. A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition. Service 
members who are determined to be unfit for duty due to disability either are separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service. Individuals who are "separated" receive a one-time 
severance payment, while veterans who retire based upon disability receive monthly 
military retired pay and have access to all other benefits afforded to military retirees.
     c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.
10.  Army Regulation 635-40 establishes the Army Disability Evaluation System and 
sets forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his 
office, grade, rank, or rating. Only the unfitting conditions or defects and those which 
contribute to unfitness will be considered in arriving at the rated degree of incapacity 
warranting retirement or separation for disability.
     a.  Disability compensation is not an entitlement acquired by reason of service-
incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted 
and who can no longer continue to reasonably perform because of a physical disability 
incurred or aggravated in military service.
     b.  Soldiers who sustain or aggravate physically-unfitting disabilities must meet the 
following line-of-duty criteria to be eligible to receive retirement and severance pay 
benefits:
	(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.
	(2)  The disability must not have resulted from the Soldier's intentional misconduct or 
willful neglect and must not have been incurred during a period of unauthorized 
absence.
11.  Army Regulation 40-501 provides information on medical fitness standards for 
induction, enlistment, appointment, retention, and related policies and procedures.  
Soldiers with conditions listed in chapter 3 who do not meet the required medical 
standards will be evaluated by an MEB and will be referred to a PEB as defined in Army 
Regulation 635–40 with the following caveats:  
     a.  U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on 
active duty, whose medical condition was not incurred or aggravated during an active 
duty period, will be processed in accordance with chapter 9 and chapter 10 of this 
regulation. 
     b.  Normally, Reserve Component Soldiers who do not meet the fitness standards 
set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 
or discharged from the Reserve Component per Army Regulation 135–175 (Separation 
of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative 
Separations), or other applicable Reserve Component regulation. They will be 
transferred to the Retired Reserve only if eligible and if they apply for it.
     d.  Reserve Component Soldiers who do not meet medical retention standards may 
request continuance in active USAR status. In such cases, a medical impairment 
incurred in either military or civilian status will be acceptable; it need not have been 
incurred only in the line of duty. Reserve Component Soldiers with non-duty related 
medical conditions who are pending separation for not meeting the medical retention 
standards of chapter 3 may request referral to a PEB for a determination of fitness in 
accordance with paragraph 9–12.

12. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 30 
percent.

13.  Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability 
resulting from personal injury suffered or disease contracted in line of duty, or for 
aggravation of a preexisting injury suffered or disease contracted in line of duty, in the 
active military, naval, or air service, during a period of war, the United States will pay to 
any veteran thus disabled and who was discharged or released under conditions other 
than dishonorable from the period of service in which said injury or disease was 
incurred, or preexisting injury or disease was aggravated, compensation as provided in 
this subchapter, but no compensation shall be paid if the disability is a result of the 
veteran's own willful misconduct or abuse of alcohol or drugs.

14.  Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic 
Entitlement) states for disability resulting from personal injury suffered or disease 
contracted in line of duty, or for aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in the active military, naval, or air service, during other than a 
period of war, the United States will pay to any veteran thus disabled and who was 
discharged or released under conditions other than dishonorable from the period of 
service in which said injury or disease was incurred, or preexisting injury or disease was 
aggravated, compensation as provided in this subchapter, but no compensation shall be 
paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol 
or drugs.

15.  Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that 
an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be 
provided with a copy of any correspondence and communications (including summaries 
of verbal communications) to or from the Agency with anyone outside the Agency that 
directly pertains to or has material effect on the applicant's case, except as authorized 
by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian 
and military medical and behavioral health professionals and are therefore internal 
agency work product. Accordingly, ARBA does not routinely provide copies of ARBA 
Medical Office recommendations, opinions (including advisory opinions), and reviews to 
Army Board for Correction of Military Records applicants (and/or their counsel) prior to 
adjudication.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right 
to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal 
hearing whenever justice requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220010616


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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