1. Applicant's Name: a. Application Date: 12 April 2021 b. Date Received: 15 July 2021 c. Counsel: M 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is uncharacterized. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, that he has been unable to become a naturalized American citizen due to the uncharacterized discharge on his DD Form 214. US Citizenship and Immigration Services (USCIS) will not accept the Form N-426 which says that he served honorably and is saying he requires an honorable discharge on his DD Form 214 as well. Not being able to naturalized has put an immense pressure on his life and has forced him to live in under a temporary status with constant fair and losing his legal status and being asked to leave the United States. When he decided to enlist in the Army through the MAVNI program, he saw it as a great opportunity to serve the country where he had lived most of his adult life. After his basic training ship dated got delayed for longer than 2 and have years, he decided to keep faith in the Arm and stay patient till the day when he would finally be allowed to ship. He tried to fulfil his reserve Soldier duty to the best of his abilities by trying to attend as many battle assemblies with his unit as he could while he was waiting for a ship date. Although he passed his eye exam twice at MEPS (2015 and 2018) he was failed at BCT and his separation proceedings were started immediately. This came as a huge unexpected shock to him as he had planned his whole future around the Army. Beyond that, he learned after he was separated that USCIS would not naturalize him as a US Citizen, even though he qualified in all respects and had passed the citizenship test, because of his DD Form 214 saying "Uncharacterized." This has placed a huge stress on his life, since until he gets naturalized he has to apply for VISA extensions/temporary protected status every year. He is in danger of being out of status constantly if his requests are denied or not approved in a timely manner. Therefore, he is asking for his character of service to be upgraded to honorable. In a telephonic personal appearance hearing conducted on 8 November 2021, and by a 4 - 1 vote, the Board determined that the discharge was inequitable based on the applicant's length of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. Please see Section 10 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Failed Medical / Physical Procurement Standards / AR 635-200 / Chapter 5-11 / JFW / RE-3 / Uncharacterized b. Date of Discharge: 3 October 2018 c. Separation Facts: (1) Date Entrance Physical Standards Board (EPSBD) convened: 28 August 2018 (2) EPSBD Findings: The findings of the evaluating physicians indicate the applicant was medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the condition existed prior to service. The applicant was diagnosed with: Moderate keratoconus in both eyes, with the left eye being worse. The applicant had a corneal degeneration, an ocular condition that existed prior to service. If correctly detected at the time of enlistment date, this would have prevented enlistment in the military. It was recommended that the applicant be immediately removed from all training and physical training. The applicant was recommended to be expeditiously separated from active duty in accordance with AR 635-200, Chapter 5-11 and DoDI 6130.03, Chapter. (3) Date Applicant Reviewed and Concurred with the Findings, and Requested Discharge without Delay: 12 September 2018 (4) Separation Decision Date / Characterization: 18 September 2018 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: ADT, 27 August 2018 / 10 weeks for basic training and 17 weeks MOS training, or until completed b. Age at Enlistment / Education / GT Score: Master of Science c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 2 years, 5 months, 29 days d. Prior Service / Characterizations: USAR, 5 April 2016 to 26 August 2018 / NA (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Commander, US Army Recruiting Command, dated 11 May 2018, Subject "Favorable Military Service Suitability Determination for Specialist (SPC) M, S. (8381) Counseling statement indicating the applicant was recommended for separation due to a medical condition of Keratoconus. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: EPSBD findings as described in previous paragraph 3c 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; and exhibits A-D (timeline, memorandum in support of application with exhibits B1-B3; diplomas and transcript, and resume). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Service-member discharged from active military service within 15 years of the Service-member's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier'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. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. (5) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (6) Paragraph 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in entry-level status. (7) Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty or active duty training or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of AR 40-501, Chapter 3. (8) Glossary prescribes entry-level status for RA Soldiers is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. For ARNGUS and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT). (Soldiers completing Phase I BT or basic combat training remain in entry-level status until 90 days after beginning Phase II.) Delete the gray area for Active Duty. e. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. f. 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 "JFW" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5-11, Failed Medical/Physical/Procurement Standards 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant seeks relief contending that he has been unable to become a naturalized American citizen due to the uncharacterized discharge on his DD Form 214. US Citizenship and Immigration Services (USCIS) will not accept the Form N-426 which says that he served honorably and is saying he requires an honorable discharge on his DD Form 214 as well. Not being able to naturalized has put an immense pressure on his life and has forced him to live in under a temporary status with constant fair and losing his legal status and being asked to leave the United States. When he decided to enlist in the Army through the MAVNI program, he saw it as a great opportunity to serve the country where he had lived most of his adult life. After his basic training ship dated got delayed for longer than 2 and have years, he decided to keep faith in the Arm and stay patient till the day when he would finally be allowed to ship. He tried to fulfil his reserve Soldier duty to the best of his abilities by trying to attend as many battle assemblies with his unit as he could while he was waiting for a ship date. Although he passed his eye exam twice at MEPS (2015 and 2018) he was failed at BCT and his separation proceedings were started immediately. This came as a huge unexpected shock to him as he had planned his whole future around the Army. Beyond that, he learned after he was separated that USCIS would not naturalize him as a US Citizen, even though he qualified in all respects and had passed the citizenship test, because of his DD Form 214 saying "Uncharacterized." This has placed a huge stress on his life, since until he gets naturalized he has to apply for VISA extensions/temporary protected status every year. He is in danger of being out of status constantly if his requests are denied or not approved in a timely manner. Therefore, he is asking for his character of service to be upgraded to honorable. The proceedings of the EPSBD revealed the applicant had a medical condition, which was disqualifying for enlistment and existed prior to entry on active duty. These findings were approved by competent medical authority and the applicant agreed with the findings and proposed action for administrative separation from the Army. The applicant requested to be discharged from the United States Army without delay. It should be noted; AR 635-200 states that a Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. The evidence of the record reflects at the time the EPSBD, convened, the applicant had 1 day of continuous active duty service, and therefore, the applicant was in an entry-level status. AR 635-200 also provides, except in cases of serious misconduct, that a Soldier's service will be uncharacterized when separated in entry-level status. 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 learned after he was separated that USCIS would not naturalize him as a US Citizen, (MAVNI Program) even though he qualified in all respects and had passed the citizenship test, because of his DD Form 214 saying "Uncharacterized." This has placed a huge stress on his life, since until he gets naturalized he has to apply for VISA extensions/temporary protected status every year. He is in danger of being out of status constantly if his requests are denied or not approved in a timely manner. Therefore, he is asking for his character of service to be upgraded to honorable. 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): None. b. The applicant presented the following additional contention(s): Applicant, character witnesses, and 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 DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? N/A. The applicant was not discharged for misconduct, so there is no misconduct to which the ADRB can apply liberal consideration to excuse or mitigate. (2) Did the condition exist or experience occur during military service? N/A. (3) Does the condition or experience actually excuse or mitigate the discharge? N/A. (4) Does the condition or experience outweigh the discharge? N/A. b. Response to Contention(s): (1) The applicant seeks relief contending that he has been unable to become a naturalized American citizen due to the uncharacterized discharge on his DD Form 214. The Board voted to change the applicant's characterization of service to Honorable because of length in service. (2) The applicant contends that he learned after he was separated that USCIS would not naturalize him as a US Citizen, (MAVNI Program) even though he qualified in all respects and had passed the citizenship test, because of his DD Form 214 saying "Uncharacterized." The Board voted to change the applicant's characterization of service to Honorable because of length in service. c. The Board determined the discharge was inequitable based on the applicant's length of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because of length in service and harshness of discharge that only affects MAVNI personnel. Thus the prior characterization is no longer appropriate. (2) The Board vote that the Reason/SPD code and RE-code were proper and equitable and voted not to change them. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210011770 8