IN THE CASE OF: BOARD DATE: 8 July 2021 DOCKET NUMBER: AR20200003695 APPLICANT REQUESTS: * an upgrade of his uncharacterized discharge to an honorable discharge * to change his DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 29 March 1989 to reflect: o his first, middle, and last name as instead of o his current address APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Lieutenant Colonel letter, 11 August 1993 * Department of Veterans Affairs (VA), Intent to File a Claim for Compensation and/or Pension or Survivors Pension and/or DIC (dependency and indemnity compensation) * Certification of Naturalization, 4 December 1992 * Social Security Card * Decree of Name Change, 13 June 1997 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC93-12041 on 12 January 1994. 2. The applicant states it is hurting him to advance in life with a record in the military that is less than honorable. 3. On 14 February 1989, the applicant enlisted in the Regular Army for a term of 5 years, at the age of 22 years old. In the enlistment process he signed a DD Form 4 (Enlistment/Reenlistment Document), which shows in item 1 (Name (Last, first, middle)) his name entered as . The form was endorsed by the applicant. 4. He was assigned to Fort Leonard Wood, MO, to attend basic training (BT). 5. The applicant was counseled on: a. 22 February 1989, by his noncommissioned officer for failing the diagnostic Army Physical Fitness Test; he failed the sit-up and run events. b. The applicant medical records show he was treated by medical personnel for knee pain. On 17 March 1989, x-rays showed he had bilateral stress fractures in his legs. Medical personnel recommended that the applicant be placed on convalescent leave and they indicated the applicant wanted an entry level separation. c. 18 March 1989, by his First Sergeant (1SG) for having a poor attitude; lack of motivation; no desire to train and remain in the service; disrespect towards a noncommissioned officer (NCO); immaturity and inability to adjust to the military; and being recommended for an entry level separation. His 1SG stated he had proven to be unfit for service. He was transferred to another platoon and had been counseled on several occasions, but it had not helped. The applicant stated he wanted to get out of the service. d. 20 March 1989, his commander contacted the physical therapy clinic in reference to the applicant's status and commented on the applicant's rehabilitation progress. He stated the applicant was counseled on numerous times regarding his lack of motivation and self-discipline. He caused a disturbance in his platoon and the company with his negative attitude and has shown no improvement. He is recommending immediate separation for the good of the service. 6. On 22 March 1989, the applicant’s immediate commander notified him that he was initiating separation actions against him under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, (Entry Level Performance and Conduct) for emotional/social behavior. The reasons for his proposed actions were the applicant's unwillingness to change and inability to adapt to military life. It was apparent that in order for him to successfully serve in the military, he would have to change many of his religious/social customs. He was adamantly opposed to any change. This lack of willingness on his part was inconsistent with military life. a. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised of the basis for the contemplated action and he understood his rights. He waived consultation with an attorney and elected not to submit a statement in his own behalf and declined a separation physical. b. In his recommendation for separation, his immediate commander requested waiver of the rehabilitative transfer requirement. He stated the applicant's social behavior was evidenced by his inability to adapt to military life. His social beliefs as a Palestinian Muslim were incompatible with military life and was the cause for disruption and conflict with his leaders and peers to such an extent that further attempts to train him would be futile. 7. On 24 March 1989, the appropriate separation authority approved the separation under AR 635-200, Chapter 11 and directed that the Soldier receive an uncharacterized discharge. The separation authority waived the rehabilitation requirement, he stated the applicant had been in the U.S. for only 9 months. As a Palestinian Muslim, his lack of motivation to change was incompatible with U.S, society and the Army, to the extent that it was impossible for him to fit in with his peers. Not only did he not want to change, he was violently opposed to change. Any further rehabilitative attempts would be in vain. 8. On 29 March 1989, the applicant was discharged under AR 635-200, paragraph 11- 3a. His service was characterized as uncharacterized. He completed 1 month and 16 days of his 5-year contractual obligation. His DD Form 214, shows he was not awarded a military occupational specialty (MOS). The form also shows in item 1(Name (Last, first, middle) shows his name as consistent with his Enlistment Document. The address listed in item 19 (Mailing Address After Separation) on the form is in . The form was endorsed by the applicant. 9. His record is void of any documents which list his first, middle, and last name as 12. In 1991, the applicant appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. He contended that he was discharged due to his physical problems which were beyond his control. The ADRB denied his appeal, determining his discharge was proper and equitable. 10. In 1993, the applicant appealed to the ABCMR for an upgrade of his discharge. The ABCMR denied his appeal, determining his application was not submitted within the time required. He did not present and his records did not contain sufficient justification to conclude that it would be in the best interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed. 11. In support of his application the applicant provides: a. Lieutenant Colonel letter, 11 August 1993. He was assigned as an Inspector General and investigated the circumstances surrounding the applicant's discharge. He stated: (1) The applicant suffered from shin splints. This condition was supported in the applicant's medical record and led to the applicant's inability to progress in physical training. The cultural misapprehensions or misinterpretations between the applicant as a practicing Muslim, i.e., his prayers and dietary practices of that religion and unsympathetic NCOs was a second factor in his discharge. The applicant did not have a clue that Americans did not normally make their religion affiliations known to those around them nor did he understand that others might have found his practice strange or offensive. His became discouraged trying to keep up physically and at the same time trying to communicate his dietary requirements to these NCOs. (2) In his opinion, it was unwise for the applicant's commanding officer to state religious conviction and practice as the basis for discharge. Under the provisions of AR 635-200, paragraph 11-3a, an uncharacterized discharge is given when separation occurs within six months of enlistment (14 February 1989 to 29 March 1989). The applicant's service was honorable and he was eligible to enlist in the Army again. b. Decree of Name Change, 13 June 1997, shows the Circuit Court of the State of granted the applicant's request to change his name from F c. Social Security Card shows his name as d. Certification of Naturalization, 4 August 1997, shows the applicant was naturalized as a U.S. citizen at the U.S. District Court of at. His name is shown on the certificate as e. VA, Intent to File a Claim for Compensation and/or Pension or Survivors Pension and/or DIC, 5 February 2020, shows the applicant filed for compensation. 12. In regards correcting his DD Form 214 to change his name and his address, a. His first, middle, and last name is listed in the order of on his service documents and there are no documents listed in the order of the name change granted by the court. There is no evidence to show the applicant provided a different address to be entered on his DD Form 214, at the time of his separation. b. AR 635-5 (Personnel Separations – Separation Documents), provides for DD Form 214, item 1 (Name): enter name in all capital letters. For item 19, it states enter the mailing address and county of residence furnished by the individual at time of separation. The county may be omitted if not listed in appendix A. Do not list civilian penal institutions as a mailing address for separation. 12. The applicant requests an upgrade of his discharge and to change his name and address on his DD Form 214. He states it is hurting him to advance in life with a record in the military that is less than honorable and contends he was discharged due to his knee pain and stress fractures in his legs. a. The available evidence shows while in a trainee status he failed a diagnostic APFT within the following month he sought medical treatment and despite a medical diagnosis and recommendation for convalescent leave he was counseled on within days of his treatment for his poor attitude and lack of motivation and notified [one day later] he was to be discharged for his inability to adapt socially, specifically, his immediate commander stated: " As a Palestinian Muslim, his lack of motivation to change was incompatible with U.S, society and the Army, to the extent that it was impossible for him to fit in with his peers. Not only did he not want to change, he was violently opposed to change. Any further rehabilitative attempts would be in vain." b. Additionally, the evidence shows only one indiscipline counseling was received one day after is medical diagnosis and recommended treatment. This counseling statement was vague and did not provide any specific details regarding the alleged performance challenges. been counseled several times regarding his performance, however his official records provide only one counseling referencing performance dated the day after his medical treatment and two days prior to separation notification. c. The applicant provides a letter from an official with the office of the IG that provides emphasis on the applicant medical condition and stated, in his opinion, it was unwise for the applicant's commanding officer to state religious conviction and practice as the basis for discharge. Under the provisions of AR 635-200, paragraph 11-3a, an uncharacterized discharge is given when separation occurs within six months of enlistment (14 February 1989 to 29 March 1989). The applicant's service was honorable and he was eligible to enlist in the Army again. d. He completed 1 month and 16 days of his 5-year contractual obligation. e. AR 635-200, in effect at the time provides: (1) Chapter 11 applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action) who could not meet the minimum standards for completion of training. Commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member. The separation authority may waive the requirement for a rehabilitative transfer. An uncharacterized description of service was required for separation under this chapter; and (2) Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. f. AR 600-20 (Army Command Policy) states the Army places a high value on the rights of its Soldiers to observe tenets of their respective religions. It is the Army's policy to approve requests for accommodation of religious practices when they will not have an adverse impact on military readiness, unit cohesion, standards, health, safety, or discipline, or otherwise interfere with the performance of the Soldier's military duties. Accommodation of Soldier's religious practices cannot be guaranteed at all times but must depend on military necessity. 14. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. 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. As such, his DD Form 214 properly shows his service as uncharacterized. 2. 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. 3. Evidence of record shows the applicant used the contested name during his entire period of service. In addition, the address shown on the DD Form 214 was the circumstance at the time the form was produced. Therefore, the Board determined the overall merit of amending the form is insufficient as a basis for correction of the records of the individual concerned. 4. The applicant is advised that a copy of this decisional document, along with his application and the supporting evidence he provided, will be filed in his official military records. This should serve to clarify any questions or confusion regarding the difference in his name recorded in his military records and to satisfy his desire to have his new name documented in his military records. 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. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. Uncharacterized Separations –– A separation was deemed entry-level status when commanders initiated the action while the Soldier was within the first 180 days of continuous active duty. Soldiers separated in an entry-level status were issued an uncharacterized character of service. On a case-by-case basis, and when clearly warranted due to unusual circumstances involving personal conduct or duty performance, the Secretary of the Army could grant a Soldier an honorable character of service. d. Chapter 11 (Entry Level Performance and Conduct) of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. (1) 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 (2) The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action). An uncharacterized description of service was required for separation under this chapter. e. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. f. Paragraph 1-18 (Counseling and rehabilitation requirements) provides commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member for chapter 11. (1) Counseling –– It will be comprehensive and will include at least reason for counseling, that separation action may be initiated-if the behavior continues, the type of discharge that could result from the possible separation action and the effect of each type. Each counseling session must be recorded in writing. DA Form 4856-R (General Counseling Form) normally should be used for this purpose. Additional formal counseling is discretionary. (2) Rehabilitation –– Members will be recycled (reassigned between training companies' or, where this-is not feasible, between training- platoons) at least once. (3) The separation authority may waive the requirement for a rehabilitative transfer. Waiver must be based upon the determination of the separation authority that further duty of the member would: * create serious disciplinary problems or a hazard to the military mission or to the member, or * be inappropriate because the member is resisting rehabilitation attempts, or * rehabilitation would not be in the best interests of the Army as it would not produce a quality soldier 2. AR 600-20 (Personnel General –– Army Command Policy), in effect at the time, was a consolidation of several regulations that prescribed policy on basic responsibilities of command, military discipline and conduct, and enlisted aspects of command. It provided guidance on and responsibilities for the Army Equal Opportunity (EO) Program. It states: (1) The policy of the U.S. Army was to provide equal opportunity and treatment for Soldiers and their families without regard to race, color, religion, gender, or national origin and to provide and environment free of sexual harassment. Soldiers were not accessed, classified, trained, assigned, promoted, or otherwise managed on the basis of race, color, religion, gender, or national origin, except the direct combat probability coding policy applies to women and necessary to support established affirmative action goals. (2) The Army places a high value on the rights of its Soldiers to observe tenets of their respective religions. It is the Army's policy to approve requests for accommodation of religious practices when they will not have an adverse impact on military readiness, unit cohesion, standards, health, safety, or discipline, or otherwise interfere with the performance of the Soldier's military duties. Accommodation of Soldier's religious practices cannot be guaranteed at all times but must depend on military necessity. 3. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents which were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. It provided for DD Form 214, item 1 (Name (Last, first, middle): enter name in all capital letters. For item 19, it states enter the mailing address and county of residence furnished by the individual at time of separation. The county may be omitted if not listed in appendix A. Do not list civilian penal institutions as a mailing address for separation. 4. 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. 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 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. 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) AR20200003695 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200003695 10 ABCMR Record of Proceedings (cont) AR20200003695 7