IN THE CASE OF: BOARD DATE: 13 December 2023 DOCKET NUMBER: AR20230005014 APPLICANT REQUESTS: in effect, an upgrade of her uncharacterized discharge to “under honorable conditions.” APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 1 February 2023 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 13 June 1995 * Department of Veterans Affairs (VA) benefits letter, 12 January 2023 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, her DD Form 214 character of service reflects uncharacterized; however, the VA recognizes her as a Veteran and has awarded her service-connected disability compensation. This VA documentation also shows an under honorable conditions characterization. She adds that she sustained service- connected disability during her time in the Army. She is applying for work and would like to claim Veteran's preference; however, she has been asked to provide a DD Form 215 (Correction to DD Form 214) showing the corrected discharge type. This correction is important and would help tremendously when she applies for work. 3. The applicant's official military personnel file is unavailable for review; however, the applicant provides a duly constituted DD Form 214, which is sufficient to provide a fair and partial assessment of the case. 4. The applicant's DD Form 214 shows the following: a. She enlisted in the Regular Army on 8 February 1995. b. The highest rank/grade attained was Private/E-1 with an effective date of 8 February 1995. c. She was discharged from active duty on 13 June 1995, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-3a, by reason of Entry Level Status Performance and Conduct. d. Her service was uncharacterized, with separation code JGA and reentry code 3. e. She completed 4 months and 6 days of net active service this period and was not awarded a military occupational specialty. 5. She additionally provides her benefits information from the VA, dated 12 January 2023, which indicates her character of service as under honorable conditions. Her combined service-connected evaluation is 40 percent with an effective date of 1 December 2022. 6. 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 her separation. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. 7. 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. 8. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, an ABCMR denial (28 January 1998, AC96-10784A), the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of her 13 June 1995 uncharacterized discharge and, in essence, a referral to the Disability Evaluation System (DES). She states: “My DD 214 list my character of service as "uncharacterized"; however, the Department of Veterans Affairs (VA), recognizes me as a Veteran, and awards me service-connected disability compensation. Moreover, on the benefits letter received from the VA, the character of service is Under Honorable Conditions. I sustained service-connected disability during my time in the Army. I am applying for work and would like to claim Veteran's Preference; however, I've been asked to provide a DD 215 showing the corrected discharge type. This correction is important and would help tremendously when I apply for work.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her DD 214 for the period of Service under consideration shows she entered the Regular Army on 8 February 1995 and was discharged 13 June 1995 under provisions provided in chapter 11 of AR 635-200, Personnel Separations – Enlisted Personnel (17 September 1990), for falling below entry level performance and conduct standards. d. No medical documentation was submitted with the application. Given the period of Service under consideration, there are no encounters in AHLTA. JLV shows the applicant has several VA service-connected disability ratings related to her lower extremities for a combined rating of 40% effective 13 May 2021. She has no diagnosed mental health conditions. e. Different from the Military Services, the VA will service connect a condition when the Veteran has the onset of symptoms of during a period of service with little regard to the length of service during which the condition presented or if the condition would have existed prior to service. f. Neither the applicant’s separation packet nor documentation addressing the circumstances of her administrative separation was submitted with the application or uploaded into iPERMS. Thus, the circumstances of her involuntary separation are unknown. g. The DES only compensates an individual for service incurred medical condition(s) which have been determined to disqualify him or her from further military service and consequently prematurely ends their career. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. h. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. i. It is the opinion of the ARBA medical advisor that neither an upgrade of her discharge nor a referral of her case to the DES is warranted. 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. 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, available military records and medical review, the Board concurred with the advising official finding that neither an upgrade of her discharge nor a referral of her case to the DES is warranted. 2. The Board noted, the applicant completed 4 months and 6 days of net active service this period and was not awarded a military occupational specialty and was discharged by reason of Entry Level Status Performance and Conduct. The Board agreed 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. As a result, there is no basis for granting the applicant's request for upgrade of her uncharacterized character of service or referral of her case to the DES. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx xx xx 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 three 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 three-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. 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. 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/NR) 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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) AR20230005014 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1