IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230001380 APPLICANT REQUESTS: * Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an honorable character of service * Revision of item 26 (Separation Code) and item 28 (Narrative Reason for Separation) to show presumably more favorable entries APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * DD 214 * Two Department of Veterans Affairs (VA) letters 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 he is unable to determine the degree of injustice he incurred because it was his platoon's negligence that caused him to sustain an in-line-of-duty medical injury. a. For over 30 years, the VA refused to grant disability benefits, claiming it could not obtain his records and that his records did not exist; however, with the help of the President of the United States, the National Archives was able to locate his records. b. As a result, the VA has now granted him a 50 percent disability rating and declared his character of service was under honorable conditions. Based on VA's findings, the applicant seeks correction of his character of service and his narrative reason for separation. c. In support of his request, the applicant provides two VA letters, which show that VA has determined the applicant's character of service is under honorable conditions; in addition, the letters indicate the VA has granted the applicant a 50 percent service- connected disability rating, but the specific disabling conditions are not mentioned. 3. According to the National Personnel Records Center, the applicant's service record have been checked out and is unavailable for review; the applicant has provided a copy of his DD Form 214, and it provides the required basis for considering his request. 4. The applicant's DD Form 214 shows he enlisted into the Regular Army, on 29 March 1989, and the Army separated him with an uncharacterized character of service, on 23 June 1989. The form also reports the following: * Item 7 (Last Duty Assignment and Major Command) – 2nd Battalion, 30th Field Artillery – U.S. Army Training Command * Item 12c (Net Active Service This Period) – 2 months and 25 days * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – two marksmanship qualification badges * Item 25 (Separation Authority) – "AR (Army Regulation) 635-200 (Personnel Separations – Enlisted Personnel), CHAPTER 11 (Entry Level Status – Performance and Conduct)" * Item 26 (Separation Code) – "JGA" (Entry Level Status – Performance and Conduct) * Item 28 (Narrative Reason for Separation – "ENTRY LEVEL STATUS – PERFORMANCE AND CONDUCT" 5. The absence of the applicant's separation packet means we are unable to determine the complete circumstances of his discharge; however, given the availability of the applicant’s record copy DD Form 214, which lists the applicant’s regulatory separation authority, the Board presumes the applicant's leadership completed his separation properly. a. AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., the documents in an applicant’s service records are accepted as true and accurate, barring compelling evidence to the contrary). b. The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning there is a greater than a 50 percent chance that what an applicant’s claims is true. 6. The VA and the Army (under the Department of Defense) operate under separate provisions of Federal law (respectively Title 38 (Veterans' Benefits) and Title 10 (Armed Forces)). As such, each makes independent determinations, based upon requirements set forth within their respective parts of the law and their own internal regulations. Internal regulatory requirements, unique to the respective organization, can result in a difference in separation descriptions; however, the findings of one organization are not binding on the other. 7. 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. 8. 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, the FSM's available records and/or submitted documents in support of the petition. 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. Upon review of the applicant’s petition and available military records, the Board determined 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 applicant did not complete his training, nor did he receive a military occupational specialty (MOS) he was separated with an uncharacterized character of service. 2. Evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. As such, the Board determined under liberal consideration changes to the applicant’s separation code and narrative reason are not warranted. Furthermore, the Board determined there was insufficient evidence of an error or injustice which would warrant a correction to the applicant’s DD Form 214 to show an honorable character of service. Based on this, the Board denied relief. 3. 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. 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, 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 enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). 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 3-9 (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. Section II (Secretarial Authority) stated the separation of enlisted personnel was the prerogative of the Secretary of the Army and was to be executed only by his/her authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him/her. e. 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. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the completion of the DD Form 214. The regulation linked the narrative reason for separation to the regulatory separation authority and directed DD Form 214 preparers to AR 635-5-1 for this entry and the separation code (SPD). 4. AR 635-5-1 (SPD), in effect at the time, showed the narrative reason for separation assigned to Soldiers separated per chapter 11, AR 635-200 was, "Entry-Level Status Performance and Conduct." and the SPD was "JGA." 5. 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001380 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1