IN THE CASE OF: BOARD DATE: 27 October 2021 DOCKET NUMBER: AR20210011784 APPLICANT REQUESTS: An upgrade of his under honorable conditions (general) character of service to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * NGB Form 22 (Report of Separation and Record of Service) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he served honorably in the Indiana Army National Guard (IARNG), and achieved the rank/grade of specialist four/E-4. He also states he was harassed by Army personnel to include his commander. He was made to sleep outside in the desert during Desert Shield. Being tormented by his commander forced him out. His commander made sure his life was hell. A sergeant in his unit was having an affair with his wife. He was made to fill sand bags and empty them. Trumped up charges were made against him for stealing a Video Cassette Recorder (VCR), which he did not do. The temperature was 130 degrees and war was on the brink. The commander told him he could get out or receive more punishment. He tried to get back into the military, but he was denied over and over. Now he is too old to reenter the military. 3. On 25 November 1987, he enlisted in the Regular Army for 4 years. He held military occupational specialty (MOS) 11B (Infantryman). On an unknown date he was assigned to Fort Campbell, KY. 4. On 24 August 1990, the applicant underwent a mental status evaluation. The evaluation determined his behavior was passive, he was fully alert, fully oriented, his mood or effect was depressed, his thinking process was clear, his thought content was normal, and his memory was good. He was determined to be mentally responsible, he met the retention requirements of chapter 3, Army Regulation (AR) 40-501, and he had the mental capacity to understand and participate in proceedings [deemed appropriate by his chain of command]. Additionally, this evaluation shows: a. This individual has been having repeated difficulties adjusting to the reasonable demands of the military and does not possess the essential characteristics and emotional strengths necessary to be a continuously effective Soldier. Efforts to rehabilitate him in this area are unlikely to succeed. The ability of this Soldier to perform his duties effectively in the future, including potential for advancement, is unlikely. It is likely that this Soldier will continue to be a disruptive influence in present or future duty assignments. The circumstances forming the basis for initiation of separation proceedings, are very likely to continue or recur. b. It is recommended that this individual be considered for administrative action as deemed appropriate by [chain of] command, to include separation from the service, under the provisions of chapter 13, AR 635-200, paragraph 13-2, (a) 4, 5 and 6. 5. On 27 August 1990, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to obey a lawful order given by a staff sergeant to call the company prior to leaving the hospital; and on or about 22 August 1990, willfully disobeying the same. His punishment consisted of 14 days of extra duty and restriction and reduction from pay grade E-2 to E-1. 6. Eight counseling statements dated between May and October 1990 show: a. In May 1990, he was welcomed to the platoon and initially counseled concerning expectations, the unit high standards, his personal appearance, military knowledge, accountability, opportunities, cleanliness, dishonesty, and being respectful, etc. b. Between July and August 1990, he was counseled for/on: * 5 and 30 July 1990, for missing formation * 1 August 1990, for failure to follow instructions, by failing to shave * 6 August 1990, for his job performance; he admitted he had family/personal problems * 22 August 1990, for failing to call the company when he finished his hospital appointment, for failing to report back to his unit, failing to report to the Troop Medical Clinic (TMC) at 1400 hours, and for failing to report as the charge of quarters (CQ) runner c. A memorandum, dated 25 October 1990, shows: * Between 13 and 24 August 1990, he received almost daily counseling for misconduct * Prior to the unit deploying he attended mental hygiene appointments and he told his counselor that much of his misconduct was because he could not prevent himself * The Post Mental Health and TMC #7 advised the applicant’s chain of that he should not be allowed to carry weapons or deploy with the unit * On or about 24 August 1990, he was counseled on the possibility of a discharge under AR 635-200, chapter 13 or 14 * The unit had completely deployed by 28 August 1990, the applicant was left with the rear detachment noncommissioned officer in charge * On 17 September 1990, the applicant arrived at the unit in Saudi Arabia; his mental health appointments continued while there; however, he was found unable to carry a weapon 7. On 27 October 1990, his commander notified him he was initiating action to discharge him under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance prior to the expiration of his term of service with a general discharge. The commander stated his proposed action was based on the applicant's unsatisfactory performance consisting of being absent from his appointed places of duty on several occasions, for wrongfully stealing a VCR, disobeying orders from noncommissioned officers, and for failing to stay awake while on guard duty. 8. On 27 October 1990, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of chapter 13, AR 635-200, for unsatisfactory performance. He acknowledged he understand that if he had less than 6 years of total active and/or Reserve military service at the time of separation; he was not entitled to have his case heard by a board of officers. He declined to submit statements in his behalf. 9. Additionally, he acknowledged he had been advised by consulting counsel of: * the basis for the contemplated action to accomplish his separation for unsatisfactory performance and its effects * the rights available to him * the effect of any action taken by him in waiving his rights * he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there was no implication his discharge would be upgraded 10. On 27 October 1990, the applicant's commander recommended that he be separated from the Army prior to the expiration of his term of service under the provisions of chapter 13, AR 635-200, due to unsatisfactory performance. He stated the specific factual reasons for the recommendation was the applicant's unsatisfactory performance consisting of being absent from his appointed places of duty on several occasions, wrongfully stealing a VCR, disobeying orders from noncommissioned officers, and for failing to stay awake while on guard duty. 11. On 28 October 1990, the appropriate authority waived the requirement for a rehabilitative transfer and directed that he be issued a general discharge under honorable conditions. 12. On 8 November 1990, he was discharged in pay grade E-3, due to unsatisfactory performance under the provisions of chapter 13, AR 635-200. His DD Form 214 shows in: a. Item 12c (Net Active Service This Period), 2 years, 11 months, and 14 days. b. Item 12f (Foreign Service), 2 years, 0 months, and 0 days. c. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or Authorized) the: * Army Service Ribbon * Marksmanship Qualification Badge Rifle (M-16) * Expert Marksmanship Qualification Badge Hand Grenade * Overseas Service Ribbon * Parachutist Badge d. Separation Authority, Chapter 13, AR 635-200. e. Character of Service, Under Honorable Conditions (General). f. Narrative Reason for Separation, Unsatisfactory Performance. 13. He applied to the Army Discharge Review Boards (ADRB) for an upgrade of his discharge and his request was denied on 22 July 1994. 14. He provided a National Guard Bureau (NGB) Form 22 showing he completed honorable service in the IARNG from 24 November 1999 to 23 November 2000. He was discharged in pay grade E-4. 15. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 16. The applicant argues that he served honorably in the IARNG, and achieved the rank/grade of specialist four/E-4, after he was discharged due to unsatisfactory performance. He also argues that he was harassed by Army personnel to include his commander and was made to sleep outside in the desert during Desert Shield. Additionally, a sergeant in his unit was having an affair with his wife. He was made to fill sand bags and empty them. Finally, he argues that he was discharged for trumped up charges made against him for stealing a VCR, which he did not do. 17. The available evidence shows the applicant was discharged under the provisions of chapter 13, AR 635-200, for unsatisfactory performance, due to being absent from his appointed places of duty on several occasions, wrongfully stealing a VCR, disobeying orders from noncommissioned officers, and for failing to stay awake while on guard duty. 18. He completed 2 years, 11 months, and 14 days of his 4-year enlistment obligation. In reaching its determination, the Board can consider the applicant's petition, his service record, and his brief in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the record of service, and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The applicant provided no post-service achievements or letters of support to weigh a clemency determination. He was discharged for unsatisfactory performance. and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, relief is denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XX XXX 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. ADMINISTRATIVE NOTE(S): NA REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely b. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. c. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 3. 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) AR20210011784 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1