IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20230002848 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show his uncharacterized service was honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214, for the period ending 7 February 1984 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 joined the Army despite having problems with speaking English. He could not perform as expected because he did not understand commands and was given an uncharacterized - bad conduct discharge, as a result. While in basic training he was hassled by his noncommissioned officers (NCO) and fellow Soldiers. Because they got in trouble due to his bad performance from his communication problem. He was rapidly discharged as a result to avoid more issues. He cannot request Department of Veteran Affairs (VA) hospital benefits as a result. He has worked hard all his life and is a hardworking individual. His four months in basic training contributed to who he is today. The Army gave him a chance and he could not perform as expected. He is now 60 years old and needs an upgrade for care at the VA hospital. 3. On 6 October 1983, the applicant enlisted in the Regular Army for a 3-year service obligation. On 19 October 1983, he reported to Fort Benning, GA, for one station unit training. 4. On 12 January 1984, the applicant’s immediate commander counseled him noting he could not speak English very well. He further noted that it was hard for the drill sergeant to train the applicant if he could not communicate with him. The commander also noted he was motivated, enthusiastic, and had excellent potential as a Soldier, but could not comprehend basic English commands to function in the U.S. Army. 5. On 16 January 1984, 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, Trainee Discharge Program, for entry level status performance and conduct. As the specific reason, the commander cited the applicant’s language barrier. 6. Subsequently, the applicant acknowledged receipt of the separation notification on the same date. He waived his right to consult with counsel and elected not to make a statement in his own behalf. 7. On the same day, the applicant's commander formally recommended his separation from service, under the provisions of Army Regulation 635-200, Chapter 11. 8. On 18 January 1984, the applicant was counseled by the Battalion Executive Officer, who noted the applicant had a problem understanding and speaking English. He was unable to follow specific instructions and was a safety hazard on live fire ranges. 9. On 23 January 1984, the applicant’s immediate commander issued a memorandum noting: “Although the SM is well motivated, and has a good attitude, his inability to speak the English language makes it difficult for the drill sergeants to train the Soldier properly. His language barrier is the only reason for his separation from the U.S. Army.” 10. On 24 January 1984, the separation authority approved the recommended discharge and a waiver of further rehabilitative measures. 11. On 7 February 1984, the applicant was discharged accordingly. His DD Form 214 shows he was separated under the provisions of Army Regulation 635-200, paragraph 11-3a, based on entry level status performance and conduct. He was credited with completing 4 months of net active service this period, his service was uncharacterized. 12. 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. 13. 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 character of service to be rated as honorable or otherwise. 14. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. 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 and available military records, the Board determined the applicant was well motivated, and had a good attitude, his inability to speak the English language makes it difficult and dangerous for the drill sergeants to train the applicant properly. His language barrier is the only reason for the applicant’s separation from the U.S. Army. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. The regulation authorized separation authorities to issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (Uncharacterized Separations). Separation authorities were to describe a separation as entry-level, with service uncharacterized, if commanders- initiated separation processing while a Soldier was in entry-level status. The regulation additionally specified the Secretary of the Army, or designee, could grant a Soldier an honorable character of service, on a case-by-case basis, when clearly warranted by unusual circumstances involving personal conduct and performance of military duties. (1) Effective 28 January 1982, the Department of Defense (DOD) established "entry-level status" in DOD Directive 1332.14 (Enlisted Administrative Separations). (2) For active-duty service members, entry-level status began on the member's enlistment and continued until he/she had served 180 days of continuous active duty. d. Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status. It states when separation of a member in 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, the member normally will be separated per this chapter. This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons: Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service BCM/NRs on 25 July 2018, 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 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) AR20230002848 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1