IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230004300 APPLICANT REQUESTS: correction to his discharge on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect “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) * NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) * Three (3) Individual Sick Slips 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 would like the correction to his discharge so that he can pursue due benefits. He did not state the error or injustice, nor did he provide the correlation between his request and the individual sick slips submitted as documentary evidence. 3. The applicant provides: a. His DD Form 214 and NGB Form 22. b. Individual Sick Slip, dated 26 June 1998, which reflects he was injuring while exiting the rear of a transport. Distance from platform to ground was estimated at 4 feet. [The applicant] states his back, left knee, and left ankle felt the brunt of the fall. [The applicant] states the right knee and ankle are sore. c. Individual Sick Slip, dated 14 January 1999, which reflects he received laceration and contusion to the right posterior lateral section of his head. It was reported that [the applicant] lost consciousness at the time of the incident for an unknown amount of time exceeding 2 or more minutes. d. Individual Sick Slip, dated 9 March 1999, which reflects his chief complaint of making more tired than when going to sleep. At times his snoring has woken him up. Those sleeping near him have complained of his snoring. 4. A review of the applicant’s service record shows: a. He enlisted in the Army National Guard on 17 January 1997. b. DA Form 4187 (Personnel Action) reflects the applicant submitted a request to enlist into the Regular Army on 16 November 1998. He indicated that he understood that he must continue to satisfactorily perform all required training with his unit up to 7 days prior to reporting for Regular Army enlistment. He also stated he will inform his unit commander of the completed action if this request is approved and provide his unit a copy of the Statement of Understanding (USAREC Form 978) upon completion. On 21 January 1999, the Deputy Director of Personnel and Administration approved his request. c. DD Form 368 (Request for Conditional Release), dated 16 November 1998, reflects the applicant submitted the request for a conditional release to enlist in the U.S. Army. In addition to his signature, the form also contained his recruiter’s signature. On 21 January 1999, the Deputy Director of Personnel and Administration approved his request. d. Oklahoma Army National Guard (OKARNG) Form 17-1 (Separation / Discharge / Inactive National Guard Request), Part III (Unit Retention/NCO/Readiness NCO or First Sergeant Comments) states, “Soldier moved to Genva, AL back to his home state. \He did not do an interstate transfer. Soldier called the unit and requested a release to enlist into the Active Army. Request approval. Recommendation: Discharge.” Signed by sergeant first class (SFC), OKARNG, noncommissioned officer in charge (NCOIC) on 9 January 1999. e. OKARNG memorandum, dated 21 January 1999, Subject: Request for Conditional Release, reflects the DD Form 368 for the applicant was approved by the Discharge Review Board for enlistment in the Army. The release is valid until 21 March 1999. f. On 4 February 1999, the applicant enlisted in the Regular Army for three (3) years in the military occupational specialty (MOS) of 54B1O, Chemical Operations Specialist. g. The complete facts and circumstances surrounding his separation are not available for review. However, the applicant’s DD Form 214 shows he entered active duty on 4 February 1999 and was discharged on 16 March 1999, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11, entry level performance and conduct, with his service characterized as uncharacterized. He completed 1 month and 13 days of net active service this period(Separation Code JGA and Reentry Code 3). He was not awarded a military occupational specialty. h. OKARNG Form 17-1, reflects the following: (1) Part III (Unit Retention/NCO/Readiness NCO or First Sergeant Comments) states, “Soldier requested interstate transfer in February to Alabama and has not reported to gaining unit. His records have already been forwarded. Recommendation: Discharge.” Signed by sergeant first class (SFC), OKARNG, noncommissioned officer in charge (NCOIC). (2) Part IV (Unit Commander Comments) states, “Solider moved back to his home state and requested an interstate transfer. Soldier has failed to report to gaining unit. Recommendation: Discharge.” Signed by on 12 November 1999. (3) Part V (Full-Time Recruiting/RetentionNCO comments – If Assigned) states, “Soldier has failed to report to his gaining unit after requesting an interstate transfer. Recommendation: Discharge.” Signed by on 12 November 1999. (4) Part VI (Battalion CSM/S-1/XO/Admin Officer or Commander Comments) states, “Soldier did not report to unit. Recommendation: Discharge.” Signed by on 15 November 1999. i. NGB Form 22 reflects he was discharged on 1 April 1999 under the provisions of NGR 600-200, 8-26c, entry level performance and conduct, with a character of service of uncharacterized. He completed 2 years, 2 months, and 15 days of net service this period. Item 13 (Primary Specialty Number, Title and Date Awarded) reflects “63B0O None.” 5. 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. 6. 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. 7. 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. 8. 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. 9. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests change in characterization of service from Uncharacterized to Honorable. He indicated that his request was related to PTSD and Other Mental Health diagnoses. b. The applicant’s record was incomplete; however, the available record was summarized in the ABCMR ROP. Of note, the applicant served in the Army National Guard of Oklahoma (OKARNG) 19970117 to 19990401. He moved back to his home state of Alabama and enlisted in the Regular Army beginning 04Feb1999. He was discharged 16Mar1999 under provisions of AR 635-200 chapter 11 for entry level performance and conduct. Records indicate he had requested interstate transfer to Alabama, but then never reported to the gaining unit. c. While still in the National Guard, on 16Nov1998 he requested to enlist in the Regular Army. He continued to serve in the National Guard while awaiting approval. National Guard documentation showed signed approval on 21Jan1999 for conditional release from OKARNG to join active-duty Army in Alabama. In the interim, he sustained a head injury (14Jan1999 Individual Sick Slip). The head injury as described meets criteria for traumatic brain injury, likely of mild severity: Loss of consciousness for an unknown amount of time (at least 2 minutes) and amnesia for the event. At the time of the exam, he was alert and a laceration (1.4 inches) and contusion were noted on the right posterior lateral section of his head. His disposition was return to duty the next day. d. The applicant ultimately is in pursuit of benefits. Service treatment records showed that in addition to the head injury, he sustained injury to back, knees and ankles due to a fall from an approximate height of 4 feet while in the National Guard (26Jun1998 Individual Sick Slip). Symptoms suggestive of onset of OSA (nonrestorative sleep and snoring) were documented while he was in the Regular Army (09Mar1999 Individual Sick Slip). There were no follow up visits available for review for these injuries. JLV search today showed there were no VA facility records available for review. However, a VA community health partner record revealed he was dealing with multiple chronic health problems including OSA (obstructive sleep apnea) and Chronic Low Back Pain and he had been driving an 18-wheeler for years (23Sep2022 Mercy Health, St Louis, MO). e. Although the available record did not show PTSD or definitive TBI diagnoses, there was documentation of head injury and symptoms consistent with TBI while he was in service. There were no follow up notes for this injury; however, the timing and nature of the injury likely interfered with his ability to fulfill his commitment and report for duty. In accordance with the 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance, evidence does reasonably support a mild TBI condition that is mitigating for the offence which led to his discharge from service. But for the traumatic brain injury, it is likely the applicant would have reported for duty and completed training. Recommend upgrade to ‘Honorable’ characterization of service. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The applicant had documented head injury and symptoms consistent with TBI. (2) Did the condition exist, or did the experience occur during military service? Yes, the TBI occurred while a member of the Oklahoma National Guard. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The TBI at the time was associated with substantial symptoms: Amnesia, loss of consciousness and visible head wound. There was no available follow up documentation showing TBI sequalae. However, it is known that TBI can result in impaired thinking/judgement/impulse control, and personality change. And under Liberal Consideration it is possible that any or all of the aforementioned sequelae could have led to poor decision making and lack of follow through in his commitment(s). 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 further review of the applicant’s petition, available military records and medical review, the Board considered the advising official recommendation for an upgrade to honorable. However, the Board found the applicant did not receive a military occupational specialty (MOS) he was discharged with an uncharacterized discharge with a narrative reason for separation listed as entry level performance and conduct. 2. The Board found there is insufficient evidence that would mitigate the applicant being a no show to his gaining unit upon his request for a transfer. The Board agreed, the applicant discharge is not in error or unjust, and is appropriate based on his performance of 1 month and 13 days of active duty service. Further, the Board noted that 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. Therefore, the Board denied relief. 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. 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) AR20230004300 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1