IN THE CASE OF: BOARD DATE: 6 July 2023 DOCKET NUMBER: AR20220011985 APPLICANT REQUESTS: an upgrade of his uncharacterized discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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, 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, in effect, he was singled out and ridiculed for being different through nepotistic and obvious favoritism by cadre. This was ongoing, which resulted in a failure to adapt to military life. 3. The applicant was asked, via letter from Case Management Division, dated 21 March 2023, to provide a copy of any medical documents that may support any mental health condition. As of the date of this writing, medical documents were not submitted. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 9 April 1999. He was assigned to Fort Sill, OK for training. b. On 19 May 1999, the applicant was notified by his commander of the intent to separate him under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, entry level status performance and conduct. Specifically for his failure to adapt to the military emotionally. [The applicant] was emotionally unstable and had poor coping skills. He could not handle the stress of basic training, and suicide gestures are possible. c. The applicant acknowledged receipt of the commander's intent to separate him and waived his right to consult with legal counsel on 19 May 1999. He was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded d. On 19 May 1999, the applicant’s commander initiated separation action against the applicant under the provision of chapter 11 of AR 635-200 for entry level status performance and conduct. e. On 21 May 1999, the separation authority approved the recommendation for immediate separation under the provisions of AR 635-200, chapter 11, entry level status performance and conduct. f. The applicant was discharged on 25 May 1999. His DD Form 214 shows he was discharged on 25 May 1999 under the provisions of AR 635-200, chapter 11, entry level performance and conduct, with a character of service of uncharacterized. He served 1 month and 17 days of net active service this period. 5. AR 635-200, Chapter 11 provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. This provision applied to individuals who had demonstrated they were not qualified for retention because they could not adapt socially or emotionally to military life; lacked the aptitude, ability, motivation, or self-discipline for military service; and, demonstrated characteristics not compatible with satisfactory continued service 6. There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 7. Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days. It further states the character of service for members separated under the provisions of chapter 11 will be uncharacterized. For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings. 8. 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. The applicant may want to so inform any potential employers. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 10. MEDICAL REVIEW: a. The applicant requests an upgrade of his uncharacterized discharge to honorable. He contends his misconduct was related to Other Mental Health issues. 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 9 April 1999; 2) On 19 May 1999, the applicant was notified by his commander of the intent to separate him under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, entry level status performance and conduct. Specifically for his failure to adapt to the military emotionally; 3) The applicant acknowledged receipt of the commander's intent to separate him and waived his right to consult with legal counsel on 19 May 1999; 4) The applicant was discharged on 25 May 1999 under the provisions of AR 635-200, chapter 11, entry level performance and conduct, with a character of service as uncharacterized. c. The VA electronic medical record, JLV, ROP, and casefiles were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. No military BH-related records were provided for review. A review of JLV was void of any BH related history for the applicant and he does not have a service-connected disability. No civilian BH-related records were provided for review. d. The applicant requests upgrade of his uncharacterized discharge to honorable and contends his misconduct was related to Other Mental Health issues. A review of the records was void of any BH-related diagnosis or treatment for the applicant during service or post-service and he provided no documentation supporting his assertion of Other Mental Health issues. In absence of documentation supporting his contention of Other Mental Health issues, there is insufficient evidence to support that applicant’s claim that his misconduct was related to Other Behavioral Health issues, and thus an upgraded is not warranted. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, the applicant contends his misconduct was related to Other Mental Health issues, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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 contends his misconduct was related to Other Mental Health issues. (2) Did the condition exist, or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant requests upgrade of his uncharacterized discharge to honorable and contends his misconduct was related to Other Mental Health issues. A review of the records was void of any BH-related diagnosis or treatment for the applicant during service or post-service and he provided no documentation supporting his assertion of Other Mental Health issues. In absence of documentation supporting his contention of Other Mental Health issues, there is insufficient evidence to support that applicant’s claim that his misconduct was related to Other Behavioral Health issues, and thus an upgraded is not warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. 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. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. 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. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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.2. 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. AR 635-200 (Personnel Separations - Enlisted Personnel), sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Entry level status is defined as the first 180 days of continuous service. a. Paragraph 3-7a states 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. Paragraph 3-7b states 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. c. Paragraph 3-9a(1) states, a separation will be described as an entry level separation if processing is initiated while a Soldier is in entry level status.. d. Chapter 11 provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. This provision applied to individuals who had demonstrated they were not qualified for retention because they: * could not adapt socially or emotionally to military life * lacked the aptitude, ability, motivation, or self-discipline for military service * demonstrated characteristics not compatible with satisfactory continued 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 based on 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) AR20220011985 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1