IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220007847 APPLICANT REQUESTS: An upgrade of his uncharacterized discharge to an honorable discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT 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, 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 his separation was not his fault. He was diagnosed with post- traumatic stress disorder (PTSD) and bi-polar manic depression while serving, with a false accusation of racism. He was released from duty and sent to medical for telling his commander about racist remarks made by noncommissioned officers (NCO). Subsequently, he was reprimanded, given an Article 15 with extra duty, and threaten with prison time; all of which he felt was unfair and led to his depression. 3. On his DD Form 149, the applicant notes PTSD, other mental health issues (OMHI), and reprisal/whistleblower are related to his request, as contributing, and mitigating factors in the circumstances that resulted in his separation. 4. The applicant's service record shows: a. On 20 August 1992, the applicant enlisted in the Regular Army for a 2 year and 16-week service obligation. He reported to Fort Benning, GA, on 1 September 1992 to complete training. b. On 10 September 1992, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in deportment towards a NCO, by refusing to take an order from him because he was white, on or about 5 September 1992. His punishment included forfeiture of $169.00 pay and 14 days extra duty with seven days suspended, to be automatically remitted if vacated before 10 October 1992. The vacation was suspended on 12 September 1992, when he failed to secure his Kevlar and Load Bearing Equipment. c. On 22 September 1992, the applicant's immediate commander notified the applicant that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, for entry level status performance and conduct. As the specific reason, the commander cited the applicant's lack of mental and physical stamina demonstrated by poor duty performance, disrespect towards NCOs, and lack of motivation. d. The applicant acknowledged receipt of the separation notification on the same date. He waived his right to consult with counsel, elected not to make any statements in his own behalf, and elected not to have a separation medical examination. e. The applicant's immediate commander formally recommended his separation from service, under the provisions of Army Regulation 635-200, Chapter 11. The commander noted the applicant had been counseled on at least 11 occasions between 28 August and 21 September 1992, for various infractions. f. On 25 September 1992, the separation authority approved the separation recommendation, waiver of rehabilitative transfer, and directed the issuance of an entry level separation with uncharacterized service. g. On 30 September 1992, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty), confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 11-5a, for entry level status (Separation Code JGA, Reentry Code 3). He was credited with completing 1 month and 11 days of net active service and his service was uncharacterized. 5. Soldiers are considered to be in an entry-level status when they are within their first 180 days of active-duty service. The evidence of record shows the applicant was in an entry-level status at the time of his separation. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It simply means the Soldier was not in the Army long enough for his or her character of service to be rated as honorable or otherwise. 6. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) 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. 7. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his uncharacterized discharge to an honorable discharge. He contends his misconduct was associated with PTSD and 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 20 August 1992; 2) The applicant accepted company grade non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 10 September 1992 for being disrespectful in deportment towards a NCO, by refusing to take an order from him because he was white, on or about 5 September 1992; 3) On 22 September 1992, the applicant's immediate commander notified the applicant that he was initiating actions to separate him under the provisions of AR 635-200, Chapter 11, for entry level status performance and conduct. As the specific reason, the commander cited the applicant's lack of mental and physical stamina demonstrated by poor duty performance, disrespect towards NCOs, and lack of motivation; 4) The applicant's immediate commander formally recommended his separation from service, under the provisions of Army Regulation 635-200, Chapter 11, noting the applicant had been counseled on at least 11 occasions between 28 August and 21 September 1992, for various infractions; 5) On 30 September 1992, the applicant was discharged accordingly. c. A review of the electronic military medical record (AHLTA) was not conducted as the system was not in use during the applicant’s time in service. No hardcopy military BH-related records were provided for review. A review of the VA electronic medical record (JLV) was void of any treatment history for the applicant and he does not have a service-connected disability. No hardcopy civilian medical records were provided for review. d. The applicant contends his misconduct was related to PTSD and Bipolar Disorder and asserts being diagnosed with both disorders while on active duty. However, a review of the records was void of the applicant receiving a BH diagnosis or treatment during or after service and he provided no evidence supporting his claim. In absence of such evidence there appear to be no compelling reason for an upgrade. Records suggest the applicant’s administrative separation was proper and equitable. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is no evidence in the records that the applicant had a condition or experience that mitigated his misconduct. However, he contends his misconduct was related to PTSD and Bipolar Disorder 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 associated with PTSD and Bipolar Disorder. (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 contends his misconduct was related to PTSD and Bipolar Disorder and asserts being diagnosed with both disorder while on active duty. However, a review of the records was void of the applicant receiving a BH diagnosis or treatment during or after service and he provided no evidence supporting his claim. In absence of such evidence there appear to be no compelling reason for an upgrade. Records suggest the applicant’s administrative separation was proper and equitable. BOARD DISCUSSION: 1. The Board determined 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. 2. 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 applicant was separated in September 1992, for entry level status (Separation Code JGA, Reentry Code 3). He completed 1 month and 11 days of active service and his service was uncharacterized. He did not complete MOS training and was not awarded an MOS. 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 no evidence the applicant receiving a behavioral health diagnosis or treatment during or after service and he provided no evidence supporting his claim. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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. 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. Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA 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. 3. 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. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that 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. Paragraph 3-9, in effect at the time of the applicant's separation, provided that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status, except when: (1) a discharge under other than honorable conditions was authorized, due to the reason for separation and was warranted by the circumstances of the case; or (2) the Secretary of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. d. 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. e. The character of service for Soldiers separated under this provision would normally be honorable but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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 condition (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. 6. 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007847 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1