1. Applicant's Name: a. Application Date: 19 March 2019 b. Date Received: 18 April 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of an uncharacterized discharge to honorable, and to change the narrative reason for discharge to a medical discharge. Counsel defers to the contentions addressed in a previous records review. Pursuant to US Court of Federal Claims, Order No. , filed on 20 June 2018, the court, granting the applicant's motion to remand the case, directed the Board to address issues presented in a complaint (No. 18-413C) filed on 19 March 2018. The applicant requests an upgrade of uncharacterized discharge to honorable, and to change the narrative reason for discharge to a medical discharge. The applicant, through counsel, seeks relief contending, in pertinent part and in effect, that while the applicant was dis-enrolled from the Army ROTC, the applicant was also an enlisted member of the Illinois Army National Guard. The applicant was erroneously and involuntarily discharged on 19 March 2012, with an improper and inequitable characterization of service. The applicant seeks to have military records from 2009 to 2012, to reflect an accurate discharge characterization and the narrative reason for separation, consistent with and according to National Guard Regulation (NGR) (Enlisted Personnel Management) 600- 200 and Army Regulation (AR) 135-178 (Enlisted Administrative Separations). The applicant also requests reinstatement of all entitlements, benefits, and promotion eligibility that the applicant would have had if not been wrongfully separated prior to attending basic training. In addition, the applicant seeks military back-pay, and reimbursement for expenses and attorneys' fees under the "Equal Access to Justice Act," and all "other relief the court deems just and proper." The evidence of record reflects the applicant had a prior records review conducted at Arlington, VA on 12 December 2018. In a personal appearance hearing conducted at Arlington, VA on 20 May 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: (Per Separation Orders 080-038, dated 20 March 2012) Failure to attend IET (phase I or phase II) within 24 months and (per NGB Form 22) Pre-IADT Discharge Program / NGR 600-200, Paragraph 6-35d (4) / NA / RE-3 / Uncharacterized b. Date of Discharge: 19 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 December 2011 (2) Basis for Separation: The applicant was informed of the following reason(s): For being dis-enrolled from the Senior ROTC. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: 17 January 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 November 2009 / 8-year MSO (ARNG) b. Age at Enlistment / Education / GT Score: 21 / Bachelor's Degree / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / None / 2 years, 4 months d. Prior Service / Characterizations: USAR (Cadet) (21 Oct 2009 to 19 Nov 2009) / NA (Simultaneously he enlisted in the ARNG (20 November 2009 for a period of 8-year MSO, unless sooner discharged) The record further shows: His Army Senior ROTC non-scholarship cadet contract, executed by him on 21 October 2009, shows his education commenced on 18 August 2008, with a completion date of 14 May 2010. Paragraph f(1) shows that he understood and agreed that failing to maintain the weight and physical fitness requirements may subject him to disenrollment from the ROTC program. Paragraph 5b(2) (Terms of Disenrollment) and (Agrees to Transfer to the IRR, if applicable), indicates that he understands and agrees that if he is dis-enrolled from the ROTC program and assigned to the ROTC Control Group, and he is not ordered to active duty and not pending such an order, and if he had not completed basic training or eight weeks of OSUT and he does not have previous military service, he will be discharged from USAR, unless he finds a Reserve unit vacancy and is accepted to fill that vacancy within 60 days of disenrollment. Paragraphs 8 and 10, in pertinent part, contain stipulations to complying with and changes in eligibility requirements, and complete agreement and severability. Orders 034-162, dated February 2010, discharging him from the ARNG and Reserve of the Army, were revoked, effective 20 November 2009, according to Orders 088-312, dated 29 March 2010. Subsequently, upon application, he was accepted as an Officer Trainee into the Simultaneous Membership Program (SMP), with a unit, HHC 33rd MP Battalion in Bloomington, IL (Illinois Army National Guard), dated 3 November 2009, and on 20 November 2009, he enlisted in the ARNG for a period of 8-year MSO. e. Overseas Service / Combat Service: None / None f. Awards and Decorations: None g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Memorandum, dated 3 May 2011, reflects the disenrollment of non-scholarship SMP cadet from ROTC. In this memorandum, he was informed of being dis-enrolled from the ROTC program for breach of contract based on his failure to meet the requirements of the Army Weight Control Program and the Army Physical Fitness test as required of active duty Soldiers, prior to the end of the last school term of the "MS IV year," and that he was being placed on leave of absence pending the dis-enrollment, effective 3 May 2011. He was provided supporting documents and advised of his procedural rights. He was informed that the Army will determine whether to order him to active duty, and if he was an SMP participant, he would be released to his unit to satisfy his remaining contractual military service obligation (MSO), and further advised of additional options, specific to his eligibility. He was directed to complete, sign, and return enclosed applicable forms with a signed acknowledgment. He waived his right to a hearing in his acknowledgment as a cadet. Orders 200-096, dated 19 July 2011, show the applicant was reduced from SGT/E-5 to PFC/E 3, due to dis-enrollment from SMP, effective 3 May 2011. Discharge Orders 080-038, dated 20 March 2012, reflect an uncharacterized discharge, effective 19 March 2012, under the authority of NGR 600-200, paragraph 6-35d(4), and NGB Form 22, reflecting same information, except refers to the authority and reason as "Order 034- 162," Department of Military Affairs, State of Illinois, dated 3 February 2010, and NGR 600-200, Pre-IADT Discharge Program. The Adjutant General of Illinois ARNG letter, dated 24 August 2018, in response to the applicant's request for relief, dated 30 August 2012, with its associated documents, shows that without further action, TAG referred the applicant for relief to ABCMR or ADRB. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: US Court of Federal Claims Order No. 18-413C, dated 20 June 2018; Complaint No. 18-413C, filed 19 March 2018, with cover letter, dated 4 April 2018; Counsel letter, dated 30 August 2012, with Discharge Orders, dated 20 March 2012, election of rights response, dated 20 December 2011, extract copy of AR 135-178 (pages 64, 67); email correspondence, dated 28 January 2012, and 9 April 2012; and United States Court of Federal Claims letter, dated 21 June 2018, with Order, extract copy of pages 73 and 74, RCFC 52.2. Additional Evidence: Attorney-authored (National Guard Bureau) cover letter, dated 25 September 2018, with listed Exhibits A through F and description of exhibits. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the court-remanded order. 7. REGULATORY CITATION(S): National Guard Regulation (NGR) 600-200 and Army Regulation (AR) 135-178 govern procedures covering enlisted personnel of the Army National Guard. Chapter 6 of NGR 600-200 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. The character of service for administrative separation is based on a determination reflecting a Soldier's military behavior and performance of duty during a specific period of service. At separation, characterization of service are authorized: Honorable, General (Under Honorable Conditions), and Under Other Than Honorable Conditions. The service of Soldiers in entry level status is normally described as uncharacterized. Separation with an uncharacterized description of service applies when separated in an entry-level status; or fraudulent entry, erroneous enlistment, reenlistment, void enlistment; or by being dropped from the rolls of the Army. Further, any of the types of characterization or description of service listed may be used in appropriate circumstances unless a limitation is set forth in section III of this chapter. Characterization of service as a result of administrative action is governed by this regulation and the service of Soldiers is either characterized or uncharacterized when they are separated from the ARNG. Army Regulation 135-178 provides the criteria for governing uncharacterized separations and the issuance of honorable, general (under honorable conditions), or under other than honorable conditions discharges. The regulation further authorizes separation with an uncharacterized description of service when separated in an entry level status. The term, "Entry level status," is applicable when upon enlistment, a Soldier qualifies for entry level status during-(1) the first 180 days of continuous active military service; or (2) the first 180 days of continuous active service after a service break of more than 92 days of active service. A member of a Reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry level status upon enlistment in a Reserve component. Entry level status for such a member of a Reserve component terminates as follows: (1) 180 days after beginning training if the Soldier is ordered to ADT for one continuous period of 180 days or more; or (2) 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into two or more separate periods of active duty. For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings. National Guard Regulation 600-200, paragraph 6-35 provides for State ARNG separations and reasons for separation from the State ARNG. All involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation. Reference is made to AR 135-178, Chapter 6, for the convenience of the Government separations based on applicable reason(s) of not being medically qualified under procurement medical fitness standards that include failure to meet medical procurement standards of AR 40-501, chapter 2 prior to entry on IET. Army Regulation 135-178, further sets forth the basis for separation. Paragraph 5-6, specifically, provides for separation of cadet on disenrollment from the Senior Reserve Officers' Training Corps or a Reserve Officers' Training Corps Scholarship Program. The service of cadets discharged or retained under the provisions of this paragraph will be described as uncharacterized. The separation authority for the Army National Guard of the United States Soldiers is the State Adjutants General; however, for cadets enrolled in the SROTC and assigned to control group (ROTC), the authority to separate cadets for disenrollment from the ROTC program may be delegated to professors of military science (PMS) (paragraph 1-11b(4)). (Emphasis added by underline) Paragraph 6-6 provides for those not medically qualified under procurement medical fitness standards, such that discharge will be accomplished on determination that a Soldier was not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on IADT. A Soldier found to be not medically qualified under procurement medical fitness standards will be discharged on the earliest practicable date following such determination and prior to entry on IADT. Such basis for discharge exists when a medical finding of the staff surgeon that the Soldier has a medical condition that would have permanently disqualified them from entry in the Army had it been detected or had it existed at the time of enlistment. National Guard Regulation 600-100, provides for ARNG commissioned officers - federal recognition and related personnel actions. Chapter 13 provides for eligibility, requirements, and policy for ARNG Simultaneous Membership Program (SMP). In pertinent part, it states that officer trainees who are dis-enrolled from ROTC will be dropped from the SMP, and if otherwise, qualified, retained in the ARNG in an enlisted status until they complete their statutory or contractual obligation. If retained in the ARNG, the Soldier must complete basic training and advanced individual training, and must enter training within 90 days of disenrollment from ROTC. Notice of Removal from SMP will be completed and Soldier's grade would be adjusted to the grade attained prior to becoming an officer trainee. 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his uncharacterized discharge to honorable, and to change the narrative reason for his discharge to a medical discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The applicant's available record and documentary evidence confirms that on 20 December 2011, the commander of the applicant's unit and Recruit Sustainment Program, notified the applicant of initiating his involuntary separation from the Army National Guard of the United States (ARNGUS) due to the dis-enrollment of the applicant from the Senior ROTC program under the provisions of AR 135-178, Chapter 5 and NGR 600-100. The applicant was also advised of the recommendation for an uncharacterized description of service and that the final authority rested with The Adjutant General of Illinois (Army), the separation authority, and the rights afforded him. Barring evidence to the contrary, it appears that all requirements of law and regulation were met when it was determined that the applicant's medical and physical condition precluded him from serving further in the ARNG. The applicant's contentions of being erroneously and involuntarily discharged, as bases for correcting his military records from 2009 to 2012, to reflect an accurate characterization of discharge and changing the narrative reason for his discharge, were carefully considered. However, the available record confirms the applicant was in an entry level status (ELS) at the time of his separation proceedings. The purpose of the entry-level status is to provide the Soldier a probationary period. Army Regulation 135-178 also provides, except in cases of serious misconduct, that a Soldier's service will be uncharacterized when separation is initiated while in entry level status. A general (under honorable conditions) discharge is not authorized under ELS conditions and an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The applicant's available service record contains no such unusual circumstances and his service did not warrant an honorable discharge. Furthermore, the applicant has never asserted that such unusual circumstances during his period of service. As stated in The Adjutant General's August 24, 2018 letter, the applicant's "characterization of service was correctly classified as uncharacterized" because that "characterization is reserved for entry-level-Soldiers who have not completed their initial training [IADT, Individual Active Duty Training] requirements." The Adjutant General's letter also appropriately identifies and addresses the salient issues in this case. The letter notes that the applicant was separated from the service in March 2012 at a point in the applicant's period of service in which he had yet to complete his initial training requirements. The Adjutant General states that an uncharacterized service designation is reserved for "entry level Soldiers who have not completed their initial training requirements. This characterization would have been used regardless of whether the separation was for medical disqualification or disenrollment from ROTC." The Adjutant General's interpretation of the regulatory framework applicable in this case comports with this Board's interpretation. Portions of AR 135-178 indicate that an honorable characterization might be appropriate, but only if the Secretary of the Army or a designee determines that "characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty." See AR 135-178, para 2-11a(2) (13 September 2011). The applicant has not provided evidence of unusual circumstances to warrant upgrading his service characterization to honorable. Consequently, the Board finds that an "uncharacterized" service characterization in this case is not improper or inequitable. In the current circumstances, the applicant was not able to complete the initial training requirements because he was not medically qualified under the procurement medical fitness standards or that he became medically disqualified under these standards prior to acceptance and entry on IADT. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier's military service. It merely means that the Soldier has not been in the Army long enough for the character of service to be rated as honorable, or otherwise. The applicant requests to change the narrative reason for his discharge. However, NGR 600-200, provides the reasons for discharges for separation of cadets on disenrollment from the Senior ROTC (SROTC), to refer to AR 135-178, Chapter 5. And to refer to AR 135- 178, chapter 7 for separation for failure to attend Initial Entrance Training (phase I or phase II) within 24 months, and an reentry (RE) code of 3 (NGR 600-200, paragraph 6-35d(4)). There is no provision for any other reason to be entered under this regulation. The applicant made additional requests for reinstatement of all entitlements, benefits, and promotion eligibility he would have had if he had not been wrongfully separated prior to attending basic training, including military back-pay, and reimbursement for expenses and attorneys' fees under the "Equal Access to Justice Act," and all "other relief the court deems just and proper." These requests do not fall within the purview of the Army Discharge Review Board; therefore, that portion of the applicant's requests should be referred to and addressed by the Army Board for Correction of Military Records (ABCMR). Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Discharge Upgrade Petition - 126 pages b. The applicant presented the following additional contention(s): Applicant and his counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 20 May 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. The Board considered the well-articulated arguments presented by the applicant and his counsel during their personal appearance. However, the Board continued to find the applicable regulations to be dispositive in this case. Those regulations provide that if a Soldier is in entry-level status, a status that certainly applied to the applicant at the time of his discharge, then "uncharacterized" generally is the appropriate service characterization for that Soldier. The facts and circumstances of the applicant's case are further explained in a 24 August 2018 letter from the Illinois National Guard Adjutant General to the applicant's counsel. The Board found that the Adjutant General's assessment of the case comports with and buttresses the Board's overall impression that an uncharacterized designation remains appropriate. As indicated above, the general rule provides that an uncharacterized designation is appropriate for entry-level separations. An exception to the general rule exists when an honorable characterization is "clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty." See Army Regulation (AR) 135-178, (Enlisted Administrative Promotions), para 2-11a(2) (Rapid Action Revision (RAR) issue date: 13 September 2011). However, the applicant and his counsel have failed to demonstrate by a preponderance of evidence that any unusual circumstances pertaining to the applicant's personal conduct or performance military duty "clearly warrant" an honorable characterization. As for the applicant's request that his reason for discharge be changed to medical discharge, the Army Discharge Review Board does not have the authority to award a medical discharge or a medical retirement. Such a request may, however, be addressed to the Army Board for Correction of Military Records. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190004283 2