1. Applicant's Name: a. Application Date: 16 April 2019 b. Date Received: 23 April 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his uncharacterized discharge to honorable, a narrative reason change and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, in the applicant's case, there was a hasty command-initiated request for separation. The applicant was experiencing difficulties mentally and emotionally, but the command did not find out if there was any way that they could have helped him. During a Command-initiated discharge request, under Chapter 10 Army Regulation 635-200: per reference 10-4 (b), consideration should be given to the soldier's potential for rehabilitation, and his/her entire record should be reviewed before taking action. The CO must provide the member reasonable time to overcome deficiencies. In this case there was a rush to judgment that there was a problem that could not be fixed. The command should have evaluated applicant as to whether he had a long-term problem or whether there was an immediate fix. After enlisting in the Army, he was given a ship date of 27 December 2016 to go to Basic Combat Training (BCT). About a week later, the applicant received news from his family informing him that his father had been admitted to the hospital for treatment. The applicant contacted his recruiter to ask for more time to go care for his father again in Vietnam, but his recruiter told the applicant, no, and that he had signed a contract, and needed to go to BCT. The applicant showed up to BCT and promptly told his Drill Sergeant about his situation. The Drill Sergeant brought the applicant to the company commander. The commander was angry with the applicant and told him he must be a North Vietnamese, that he was like a communist, that he would "kick his ass out of the Army", and that the applicant should go back to Vietnam and not come back to the United States. The applicant was frightened as he had just immigrated to the U.S., so he obeyed his order lest he give him an Article 15. The applicant wrote a personal statement about how he understood things to be. He was very afraid of what would happen, so he just went along with things. His command took him to the hospital at Fort Jackson and he was seen by behavioral health. The applicant's command told him that he had a mental health issue and that he was leaving the Army. The applicant was still afraid so he just signed whatever they gave him because he did not have anyone else to help his voice get heard. Although the Command was authorized to administratively separate applicant, the fundamental reason for the discharge was substantially deficient. There was no fully determined reason to initiate his elimination. The Instruction also allows for the service member to be able to "fix" the problem. The applicant was not allowed these opportunities. The service-member was never offered or provided with rehabilitation. If he was offered such, due to the fact English is his second language he did not fully understand what was happening. The command in this case did not have the proper authority to administratively separate the applicant. The Entry Level Separation does not serve a further purpose. The events that took place are no longer relevant to applicant's life and he has lived in as a responsible manner as he could. There is no valid equitable purpose in leaving the ELS in place. The applicant now lives as stable and productive a life as possible. He has purchased property in Michigan and runs a veterans' home for veterans which have become homeless due to bankruptcy. The applicant requests that his ELS be upgraded so that he can serve in the Nebraska National Guard and not be a burden on his new country, that he be shown equality and justice so that he might have a fair future and peace of mind. Counsel further details the contentions in an allied legal brief provided with the application. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate no BH diagnoses to consider. VA records are void of contact. The applicant is not service-connected from the VA. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 6 January 2021, 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: Entry Level Performance and Conduct / AR 635-200 / Chapter 11 / JGA / RE-3 / Uncharacterized b. Date of Discharge: 10 February 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 December 2016 / 6 years b. Age at Enlistment / Education / GT Score: 28 / Bachelor's Degree / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 1 month, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Legal brief; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has purchased property in Michigan and runs a veterans' home for veterans which have become homeless due to bankruptcy. 7. REGULATORY CITATION(S): Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-9 contains guidance on entry-level separations. It states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service. Chapter 11 of AR 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry-level status (ELS). An uncharacterized service description is normally granted to Soldiers separating under this chapter. A general discharge (GD) under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JGA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 11, entry level performance and conduct. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JGA" will be assigned an RE Code of "3." 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his uncharacterized discharge to honorable, a narrative reason change and a reentry eligibility (RE) code change. The applicant's available, record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 11, by reason of Entry Level Performance and Conduct, with a characterization of service of Uncharacterized. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. A general discharge (GD) under honorable conditions is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. Further, the uncharacterized description of service accurately reflects the applicant's overall record of service. 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 his or her character of service to be rated as honorable or otherwise. The applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. Further, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs, which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. The applicant contends he was not afforded the opportunity for rehabilitation. However, AR 635- 200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. The applicant contends that he was discriminated by members of his chain of command; however, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant contends he was told he had a mental condition. However, the service record contains no evidence of mental health diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends the narrative reason for the discharge should be changed because it no longer serves a purpose. However, the applicant was separated under the provisions of Chapter 11, AR 635-200 with an uncharacterized discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Entry Level Performance and Conduct," and the separation code is "JGA." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of "3." There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of "3" indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. 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 that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 6 January 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / 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 AR20190007962 1