IN THE CASE OF:	  

		BOARD DATE:	    12 September 2013

		DOCKET NUMBER:  AR20130000622 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by showing his uncharacterized discharge as an honorable discharge and that the reason and authority for separation be based on his medical condition.

2.  The applicant argues the Physical Evaluation Board (PEB) ruled he was to be given an honorable discharge for his active duty service based on their findings.  He points out that the "EOD" of 07/08/2009 and the "RAD" of 10/29/2009 match his dates of active duty for training.  This means the Board's assertion that he has already received the medical discharge he seeks is incorrect.  He also argues that based upon the findings of the PEB when they decided to remove him from service and based upon the findings of the Board when they previously heard his case (Item 5 in discussion and conclusions), he argues that his chain of command failed to discharge him properly.  He was given an Entry Level Separation (Uncharacterized) when he was released from active duty (REFRAD) at Ft. Benning.  He argues that based upon the medical findings by both the PEB and the Board the injuries he sustained when on active duty for initial entry training (IET) called for a medical discharge characterized as honorable when he was REFRAD at Ft. Benning in 2009.  He argues that both the PEB and the Board (when it previously reviewed his case) acknowledged his chain of command dealt with him in an improper manner and issuing him an honorable medical discharge is the proper remedy.


3.  The applicant believes the Board committed an error in reasoning when it decided to grant only partial relief.  He finds it confusing that the Board came to its decision not to change his discharge from "uncharacterized" to honorable when he was processed through the PEB that culminated in an honorable discharge.  He is further puzzled by the Board's finding that it would not be appropriate to correct his DD Form 214 to show a reason and authority for which there was no basis at the time.  He contends that even though the Board states an uncharacterized discharge is not meant to be a reflection of the Soldier's service, it is anyway.  It prevents him from receiving many veteran benefits from low cost auto insurance to Department of Veterans Affairs (VA) education programs.  It can and will reflect negatively on him if he should attempt to secure a job with the Federal government.

4.  The applicant provides:

* DD Form 214 (Member copy number 1)
* DD Form 214 (Member copy number 4)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DA Form 199 (PEB Proceedings), dated 12 August 2011
* VA Rating Decision, pages 1 and 2, dated 17 June 2011 (Copy to PEB)
* Soldier's Medical Evaluation Board (MEB)/PEB Counseling Checklist, undated
* VA Rating Decision, dated 17 June 2011
* VA Compensation Decision, undated

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120004376, on 18 October 2012.

2.  The applicant has not provided any new evidence for the Board to consider.  He disagrees with the Board's previous decision and advances argumentative points to support his disagreement.  In the interest of providing a better understanding of the issues in this case, it would be appropriate for the Board to consider his arguments.

3.  In the original ABCMR Record of Proceedings (ROP) the Board made the following determinations:


	a.  The evidence of record does not support the applicant's request for correction of his DD Form 214 to show his service was characterized as honorable because he was in an entry-level status when he was REFRAD.  This normally requires uncharacterized service.  His record is void of unusual circumstances involving personal conduct and performance of duty that might have supported consideration for an exception to the regulation.  Therefore, he is not entitled to correction of his record to characterize his service as honorable.

	b.  The applicant should note that an uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier did not serve on active duty long enough for his or her character of service to be rated.

	c.  The available record indicates an inequity in the reason and authority for REFRAD shown on his DD Form 214.  He was REFRAD due to his entry-level performance and conduct.  He was subsequently discharged from the Florida Army National Guard (FLARNG) for failure to meet medical procurement standards.  By direction of an Inspector General, his discharge from the FLARNG was revoked and he was referred to the Army PDES.

	d.  A PEB convened and found he was unable to complete IET due to an unfitting medical condition.  He was then discharged from the FLARNG for being medically unfit for retention.

	e.  Based on the PEB findings, it appears his condition was overlooked by his chain of command during IET.  The PEB found sufficient evidence to establish he had incurred a condition during IET that prevented him from completing training and warranted his discharge for disability with severance pay.  It appears his condition should have been evaluated while he was on active duty but it was not.

	f.  The fact that the PEB was able to establish he was unfit indicates his REFRAD for entry-level performance and conduct was inequitable.  It would be appropriate to correct this inequity at this time.

	g.  He has already received the medical discharge he seeks.  He has been processed through the PDES and properly discharged from the ARNG with severance pay by reason of being medically unfit for retention.  This did not happen prior to his REFRAD and it would not be appropriate to correct his DD Form 214 to show a reason and authority for which there was no basis at the time.


	h.  However, to provide relief from the pejorative and inequitable reason and authority for REFRAD shown on his DD Form 214, it would be appropriate to issue him a new DD Form 214 showing he was REFRAD by reason of Secretarial authority under the provisions of Army Regulation 635-200, paragraph 5-3.

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-9a states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when:

		(1)  characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or

		(2)  Headquarters, Department of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority.

	b.  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 of such a member of a Reserve Component terminates:

		(1)  180 days after beginning training if the Soldier is ordered to active duty for training (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.

	c.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification of the initiation of separation proceedings.

	d.  Chapter 5 contains policies and procedures for voluntary and involuntary separation for the convenience of the government.

		(1)  Paragraph 5-3 provides for Secretarial plenary separation authority.  It states 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 best interest of the Army.  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.

		(2)  Paragraph 5-11e states Soldiers who do not meet the medical fitness standards for retention will be processed per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	e.  Chapter 11 provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision applies to individuals who have demonstrated that they are not qualified for retention because they cannot adapt socially or emotionally to military life, or because they lack the aptitude, ability, motivation, or self discipline for military service, or they have demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applies to Soldiers who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation requires an uncharacterized description of service for separation under this chapter.

5.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

6.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the 
Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

7.  Army Regulation 635-5-1 (Separation Program Designators (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.

	a.  Table 2-2 states narrative reason "entry-level performance and conduct" and SPD code "JGA" apply to Soldiers discharged under the provisions of Army Regulation 635-200, chapter 11.

	b.  Table 2-2 states narrative reason "Secretarial authority" and SPD code "JFF" apply to Soldiers discharged under the provisions of Army Regulation
635-200, paragraph 5-3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the Board should reconsider its earlier decision by showing his uncharacterized discharge as an honorable discharge and that the reason and authority for separation be based on his medical condition.

2.  The available evidence clearly shows that the applicant was still in an entry level status when he was REFRAD.  The governing regulation requires Soldiers separated from active duty in an entry level status to be identified as having uncharacterized service except under unusual circumstances involving personal conduct and performance of duty.  There are no such circumstances in this case.  This is not a negative or derogatory description, regardless of what another agency or individual may or may not determine.

3.  The evidence clearly shows that the applicant's medical determination was not made until after his REFRAD.  Accordingly, it would not have been appropriate for the Board to show such determination on a document issued prior to that determination.  Furthermore, even if the reason and authority were changed to show a medical basis, it would not have an effect on the applicant's characterization.  His DD Form 214 would still show an entry level status requiring his service to be uncharacterized.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.








BOARD VOTE:

________  ________  ________  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 to amend the decision of the ABCMR set forth in Docket Number AR20120004376, dated 18 October 2012.



      _______ _ X _______   ___
       	   CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20130000622



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ABCMR Record of Proceedings (cont)                                         AR20130000622



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