IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160002057 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160002057 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. ______________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. IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160002057 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: The applicant requests a personal appearance before the Board. He defers to counsel for the remainder of his request, statement and submission of evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, that the applicant's under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. Counsel states: a. The applicant enlisted in the Army on 12 September 1990 and attended basic training at Fort Benning, GA. After basic training, he completed heavy anti-armor and weapons crewman training at Fort Benning, GA. While in the Army, he received a rifle sharpshooter badge, grenade sharpshooter badge, tow gunner badge, gunner/crew training badge, and the Army Service Ribbon. After graduating from military occupational specialty (MOS) training, the applicant was stationed at Fort Carson, CO, until he was discharged on 16 April 1991. b. While at Fort Carson, he experienced unfair treatment due to his race; he was a constant victim of racism. During his first three months at Fort Carson, he participated in field training exercises where he became the victim of egregious conduct. He spent 8-10 weeks digging six foot long, three foot wide, and six foot deep graves. Every time he completed a grave, he was ordered to lie down in it by his first sergeant (1SG). Then, the members of his unit would all crowd around him and point their rifles at him and threatened to kill him and bury him there where no one would find his "black ass." This activity continued for months. One day his Company Executive Officer (XO), a commissioned officer, approached him and asked if he had eaten. When he responded that he had not, the XO ordered him to eat that evening at 1800 hours. At 1800 hours, he ceased digging and proceeded to eat. When his 1SG noticed he was not digging, he approached him and asked why he had stopped digging. He explained to the 1SG that the XO had ordered him to eat. The 1SG ordered him back to digging without the meal in violation of the XO's order. He informed the 1SG that he had been ordered by a commissioned officer to eat and he feared that following the conflicting order from the 1SG would expose him to punishment. c. His 1SG denied him the very meal the XO had ordered and forced him to sit in a track vehicle. After the 1SG placed him in the track vehicle, a member of his unit intentionally slammed the hatch on his head, which rendered him unconscious. While unconscious, he was left in the track vehicle that had an inoperable heater. When he woke up he could not feel his legs. The unit medic arrived to inspect him and found him in a state where he could not feel or use his legs; however, the medic left him in the vehicle rather than returning him to base to seek medical treatment. He remained in the field for another three weeks, despite his inability to walk or engage in field operations. He was returned to base only after the field operations ended. d. In 1991, he was diagnosed with chilblains (painful inflammation of small blood vessels in the skin that occurs in response to repeated exposure to cold but not freezing air). In 2015, he was diagnosed with post-traumatic stress disorder (PTSD) related to his military service. To this day, he struggles as a result of his "grave digging" experiences and the treatment he endured at the hands of his fellow Soldiers. e. Around 1 February 1991, he returned from field operations to base. After returning to base, rather than being taken to receive medical treatment, he was restricted to the barracks, placed on extra duty, and forced to forfeit pay. He was punished via Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order; however, there is no documentation to substantiate such punishment nor was he provided notice of any such action. Soon after receiving this unlawful punishment, he was informed that his grandmother (guardian) was dying of cancer. The information about his grandmother, combined with the physical, mental, and emotional abuse he suffered as a result of pervasive racism in his unit, devastated him. On 16 April 1991, he was discharged for unsatisfactory performance, despite the lack of a valid or lawful record of unsatisfactory performance. His service was characterized as under honorable conditions. f. The applicant respectfully requests that the Army Board for Correction of Military Records (ABCMR) grant him a character of service change from under honorable conditions (general) to honorable. The only blemish in his official military personnel file (OMPF) is a facially defective DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), a form used to record nonjudicial punishment (NJP) proceedings against a service member. The form was never dated or signed in any of the four required places. There is no indication the Army provided him the process he was entitled to receive before imposing punishment. The Army's failure to provide him the procedural protections he was entitled to violated his constitutional and statutory rights. This violation of his rights provided the only blemish in his OMPF and was the only conceivable basis for his under other than honorable conditions service characterization. g. He filed for benefits with the Department of Veteran Affairs (VA) in 2012; however, he was denied VA benefits pursuant to a letter from the VA, dated 11 February 2013. It was not until he received this denial letter that he discovered the process for seeking review and correction of his military personnel records. h. The applicant is a pillar in his community. After his discharge, he faced a reality: caring for his terminally ill grandparents (for all intents and purposes his guardians) and his ailing great aunt and uncle, while simultaneously attending classes at Camino College and working as a police explorer advisor for the Los Angeles Police Department's southeast division. He has maintained employment in the security field. He has held positions requiring a top secret and SCI clearance; his clearance is currently inactive. In 2009, he completed his Bachelor of Arts degree in Business Administration from California State, and in 2011, he completed his Master's degree in Criminal Justice from California State. He continues to devote his time to his community. He is an active member in his church, volunteers for security detail at his church, trains the security team, and serves the homeless in his local community. He has no criminal record and is a single father to a special needs child. i. The applicant's discharge was improper and inequitable for the following reasons: (1) the Army discharged him based on a procedurally and facially defective DA Form 2627; (2) the Army violated separation procedures; and (3) the Army violated the Administrative Procedure Act (APA). It is in the interest of justice for the ABCMR to correct his military records and reimburse him for pay he was wrongly deprived of. (1) The applicant's discharge is improper and should be upgraded to honorable because the Army discharged him based on a procedurally and facially defective DA Form 2627. (a) A discharge shall be deemed proper unless, in the course of discharge review, it is determined that there exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made). [Title 32, Code of Federal Regulations (C.F.R.), section 70.9 (b)(l)(i).] (b) Process Due for NJP. Under the UCMJ, military commanders can punish service personnel through judicial proceedings – taking the form of general, special, or summary courts martial – or by imposing NJP. When a service member faces NJP, he has rights and must make important decisions. A Soldier must be provided notice, right to counsel, right to remain silent and not make incriminating statements, right to a decision period, right to elect NJP or demand court-martial, and the right to appeal. (c) Under the UCMJ, military commanders can punish service personnel through judicial proceedings – taking the form of general, special, or summary courts martial – or by imposing NJP (Piersall v. Winter, 507 F. Supp. 2d 23, 29 (D.D.C. 2007); See generally Chappell v. Wallace, 462 U.S. 296, (1983); Middendorfv. Henry, 425 U.S. 25, (1976)). When a service member faces NJP, he has rights and must make important decisions (Field Manual (FM) 27-14 (Legal Guide for Soldiers) at 17-18 (1991)). If, after a preliminary inquiry, the NJP authority determines that disposition by NJP proceedings is appropriate, the service member must be provided with notice (Manual for Courts Martial (MCM - 1984; MCM – 1986)). A commander must notify a service member in writing that he plans to give him a formal Article 15. He will notify him using DA Form 2627, with sections 1 and 2 completed, including the date and signature of the imposing commander, provide supporting documents and statements, advise him of his legal rights, and provide a reasonable amount of time to see a lawyer (FM 27-14 (Legal Guide for Soldiers) at 17-18 (1991); Army Regulation (AR) 27-10 (Military Justice), 3-18(a) (1989); AR 27-10, 3-18(c) (1989); AR 27-10, 3-18(1) (1989)). The Soldier will be informed that he is not required to make any statement, and any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings; including a trial by court-martial (AR 27-10, 3-18(b) (1989)). A service member will be provided a 48-hour decision period to elect NJP or demand court-martial, and that decision period will not begin until the Soldier has received notice and explanation of rights under Article 15, and has been provided a copy of DA Form 2627 with items 1 and 2 completed (AR 27-10, 3-18(f) (1989); AR 27-10 3-18(d) (1989)). A Soldier has the right to appeal a NJP (FM 27-14 (Legal Guide for Soldiers) at 17-18 (1991)). (d) Failure to provide notice. Failure to provide notice, DA Form 2627, to him substantially denied his rights. (See DA Form 2627 attached as exhibit A.) His commander contemplated NJP; therefore, his commander was required to provide notice. He was to be provided with a copy of DA Form 2627, with Section 1 and 2 completed, signed and dated. His commander failed to provide notice. The DA Form 2627 is lacking all required signatures and dates evidencing that the form was provided to him, causing him to lose the right to be informed when making important decisions; thus, the DA form 2627 that is contained in his file is defective as a matter of law. (e) The DA Form is defective and failed to provide him notice of his rights and process due. There is no evidence his commander fulfilled his duty to notify him of NJP. Notification that a commander intends to dispose of the matter under Article 15 does not necessarily require notice in writing. However, when a commander chooses to notify someone verbally or by other means they must properly document that notice was provided. The DA Form in his OMPF contains no acknowledgement that notice was provided. Further, his OMPF is absent of any documentation showing that he was notified. Therefore, he was never provided with notice of his command's intent to dispose of the allegations pursuant to Article 15. The commander's failure to provide notice was a denial of his rights and a violation of Army regulations. (f) Denial of right to counsel. Failure to provide him with DA Form 2627 denied his right to counsel. Section 2 of DA Form 2627 indicates the building where legal counsel is located, but in order for a service member to rely on Section 2 they must be provided with the DA Form, or told of the right to consult with counsel and where they are located. Section 2 requires the commander's signature, a date, and time. The DA Form in his OMPF is lacking his signature, his commander's signature, and is not dated. The applicant was never provided with the DA Form 2627 or informed of his right to counsel. Therefore, he was denied his right to counsel. The commander's denial of his right to counsel further denied his rights and violated Army regulations. (g) Right to remain silent. Failure to provide notice and denial of his right to counsel prevented him from knowing he had the right to remain silent and not make incriminating statements. Therefore, he was denied his right to remain silent. The commander's denial of his right to remain silent further denied his rights and violated Army regulations. (h) Election. Failure to provide notice denied him the right to elect NJP or demand courts-martial. Section 2 of DA Form 2627 requires the commander's signature, service member's signature, date, and time. Section 2 states, "You now have 48 hours to decide what you want to do." This 48-hour period is a service member's decision period. Failure to indicate the date and time could result in an arbitrary or capricious decision because there is no documentation certifying when the 48-hour time limit begins. Failure to complete both sections 1 and 2 of DA Form 2627 suspends the decision period because a decision period cannot commence until the service member is provided with a DA Form 2627 with sections 1 and 2 completed. Because his commander failed to complete section 1 and 2, his decision period never commenced. Even today the decision period could not commence because section 1 and 2 are incomplete. (i) Section 3 of DA Form 2627 contains boxes which are to be marked indicating a service member's election. Reviewing the DA Form, no election is made. Failure to make an election results in an incomplete DA Form 2627 (United States v. Mack, 9 M.J. 300, 322 (C.M.A. 1980)). (If neither block [in section 3] is checked, the form would be incomplete on its face.) He was denied the opportunity to elect NJP or demand courts-martial. Therefore, his commander denied him the right to make an election. The commander's denial of his right to make an election furthered denied his rights, violated Army regulations, and renders the form incomplete and void. (j) Appeal. Failure to notify him of his right to appeal the NJP was a denial of process and allowed his commander to unlawfully impose punishment. Punishment imposed under Article 15 is invalid when the command does not follow required procedures, and the failure materially prejudiced the service member's substantial rights (United States v. Negrone, 9 M.J. 171(C.M.A.1980) ("If the error materially prejudiced a substantial right of the service member not only should the punishment be invalidated, but the DA Form 2627 excluded from his records."); United States v. Elston, 34 M.J. 1036, 1038 (N-M.C.M.R. 1992) ("When the error materially prejudices a substantial right of the service member not only should the punishment be invalidated, but the DA Form 2627 excluded from his records for being facially inadequate constituting legal error."); Richey v. United States, 322 F.3d 1317, 1320-21 (Fed. Cir. 2003) ("A substantially inaccurate document must be deleted from a service member's record."); United States v. Rimmer, 39 M.J. 1083 (A.C.M.R. 1994) (record of Article 15, UCMJ, proceedings was inadmissible because it was missing an election of appeal rights)). He was denied his right to appeal the NJP. Because his commander failed to follow Army procedures; failing to complete the DA Form 2627, his punishment was unlawful, a violation of Army regulations, and a denial of his rights. Further, this failure requires the DA Form 2627 in his OMPF be removed for being facially defective. (k) Reliance on DA Form 2627 during separation. The Army established regulations to ensure service members are provided with due process prior to and during administrative separation (AR 635-10; See Jamison v. United States, 5 Cl. Ct. 747 (1984) affd, 765 F.2d 159 (Fed. Cir. 1985)). A less than honorable administrative discharge must be based "upon the record of [the member's] military service." Gay Veterans Ass'n, Inc. v. Sec'y of Def, 668 F. Supp. 11, 16 (D.D.C. 1987) affd, 850 F.2d 764 (D.C. Cir. 1988) quoting Harmon v. Brucker, 355 U.S. 579, 581 (1958); Goldberg v. Kelly, 397 U.S. 254 (1970) ("the decision maker should state the reasons for his determination and indicate the evidence he relied on."). An agency decision is supported by substantial evidence if there is such evidence that a reasonable person" 'might accept as adequate to support a conclusion.' " Crane v. Sec'y of Army, 92 F. Supp. 2d 155, 167 (W.D.N.Y. 2000); Falk v. Secretary of the Army, 870 F.2d 941, 945 (2d Cir. 1989), quoting Consolidated Edison v. NL.R.B., 305 U.S. 197, 229 (1938). "A court will not disturb the decision of an agency that has 'examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.' " Roberts v. Harvey, 441 F. Supp. 2d 111, 118-19 (D.D.C. 2006); quoting MD Pharm. v. Drug Enforcement Admin., 133 F.3d 8, 16 (D.C. Cir. 1998); see also Dickson v. Sec'y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995) ("A reviewing court will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned."); Smith v. Dalton, 927 F.Supp. 1, 5 (D.D.C. 1996) ([I]f the record contains such evidence that a reasonable mind might accept, the court must accept the board's findings.) (l) The Army's decision to separate him with a less than honorable discharge is not supported by substantial evidence. The Army's decision fails to articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. His OMPF is absent of the Army's justification or explanation for the basis of his discharge. Therefore, a reasonable person would be unable to determine the Army's basis for discharge. However, we do know that the evidence, his entire military record, must support the conclusion to separate him with a less than honorable discharge. A reasonable person would not allow reliance on a defective DA Form to be the basis for separation and characterization of service. Viewing his OMPF without the defective form, there is no evidence, much less substantial evidence, supporting the Army's decision. The error, a facially defective DA Form 2627, when evaluated against the entire record, so prejudiced his rights, leading to punishment and involuntary separation, plain error is present and actionable. (m) He received a less than honorable discharge. Reviewing his OMPF, he served honorably and without issue, except for the defective DA Form 2627. He graduated from boot camp, attended and completed MOS training, and served with his first official unit at Fort Carson, CO. During that time there is no record of unsatisfactory performance. Without the defective DA Form his record would be absent of any unsatisfactory or less than honorable service. Because the DA Form was defective it should have never have been placed in his OMPF. Had the defective form never been placed in his record there would be no basis for anything other than an honorable discharge. He was not facing punitive or criminal penalty. Rather, he was alleged to have committed an act under chapter 13 and eventually separated pursuant to chapter 13. One act or alleged occurrence of behavior under chapter 13 does not rise to the level of less than honorable service; more would be needed and if such actions existed, he would have been separated pursuant to chapter 14 or another chapter, which presumed the "less than honorable" standard. However, because he was separated for unsatisfactory performance under chapter 13, his record does not support a discharge of anything but honorable. The Army failed to justify its decision and relied on a defective DA Form 2627. His service record supports only an honorable discharge. (n) Rebuttable presumption of regularity. While a rebuttable presumption of regularity exists, the facially defective DA Form, reviewed in context with his OMPF and his personal statement (Exhibit C), is sufficient justification to overcome the presumption of administrative regularity (United States v. Booker, 5 M.J. 238 (C.M.A. 1977); United States v. Mack, 9 M.J. 300, 322 (C.M.A. 1980)). (If neither block [courts-martial demanded and courts-martial not demanded] is checked, the form would be incomplete on its face and so not entitled to the presumption of regularity). Notably, since this DA Form is facially defective (void of all required documentation) and placed in his OMPF and remains there today, numerous people were required to review it. Assuming required administrative procedure occurred, the DA Form would have been reviewed by him, his commander, his Admin Section, the Separation Authority, the Admin Section (again during separation, see AR 635-10 3-11 (1987)), and himself (again during separation). He has rebutted the presumption of regularity. (o) Conclusion: For the reasons set forth above, there exist errors of fact, law, procedure, and discretion associated with the discharge at the time of issuance and Mr. Hawke's rights were prejudiced; therefore, Mr. Hawke's discharge is improper and should be upgraded. (2) His discharge is improper and should be upgraded to honorable because the Army violated separation procedures. (a) A discharge shall be deemed proper unless, in the course of discharge review, it is determined that there exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made). 32 C.F.R. §70.9 (b)(l)(i). (b) Process Due for Separation. Certain procedures must be followed to ensure service members are afforded due process when separation is contemplated, and throughout separation. When a service member's conduct may warrant separation, the member must be counseled and counseling recorded in writing. The service member must be offered a reasonable opportunity to overcome the deficiencies. A discharge review (records processing) is required prior to administratively separating a service member. (c) When a member's conduct or performance may warrant separation action, the member will be counseled. Each counseling session will be recorded on DA Form 4856-R. Unless separation is mandatory, the potential for rehabilitation and farther useful military service will be considered by the separation authority. If separation is warranted despite the potential for rehabilitation, consider suspending the separation. Separation action for unsatisfactory performance will not be started until a member has been counseled by the unit commander about his or her deficiencies. Then the member must be offered a reasonable opportunity to overcome them. A discharge review (records processing) is required prior to administratively separating a service member. Personnel, health, dental and financial records of each Soldier scheduled for transition will be reviewed, initiated, and checked. Pre-transition processing will include a careful and thorough review of the service member's military personnel records. Soldiers being transitioned will review their MPRJ and PFR. The review will include a check for the following documents: (a) Promotion and reduction orders, (b) Article 15 actions, (c) Court-martial orders, and (d) DA Forms 2 and 2-1 (Personnel Qualification Record, parts I and ll). In all cases the DA Form 4188 (Military Personnel Office/Finance Office Verification of MPRJ and PFR) will be used to accomplish the review. Upon completion of the records review, the completed DA Form 4188 will be forwarded to the FAO by MTL. (d) Counseled. In 1991, he was involuntarily separated for unsatisfactory performance. Therefore, his OMPF should contain counseling session records. However, reviewing his OMPF no counseling records are found. He was never counseled. By failing to counsel him the Army deprived him of his due process rights. He was denied notice that separation action may commence, an opportunity to address the deficiencies, and know the possible discharge characterizations and effects. He was never counseled by his unit commander about his deficiencies. His military record is absent of evidence of counseling. Army Regulation 635-10 specifically states that separation action for unsatisfactory performance will not commence until counseling has occurred. By failing to counsel him the separation action could not commence. Therefore, the Army violated his due process rights by unlawfully initiating separation proceedings in violation of Army regulations. (e) Opportunity to Overcome Deficiency. He was denied the required opportunity to overcome his deficiencies. Unsatisfactory performance was not a mandatory separation offense. Therefore, the separation authority had to consider the potential for rehabilitating him. He had completed boot camp and MOS training. The Army had made a significant investment in training him; therefore, it is reasonable, and required pursuant to AR 635-200 (Personnel Separations – Enlisted Personnel), that rehabilitation be considered. In the event that the separation authority considered rehabilitation and still found separation was warranted, they were to consider suspending the separation. His military record is absent of any separation authority justification. Therefore, we do not know whether the separation authority ever contemplated rehabilitation or suspending the separation. Because the separation authority failed to state a reason, support a conclusion, or file appropriate paperwork so that the decision could be known or reviewed, the Army failed to follow the Supreme Court's requirements set out in Goldberg v. Kelly, 397 U.S. 254 (1970) ("the decision maker should state the reasons for his determination and indicate the evidence he relied on."). AR 635-200 specifically states that separation action for unsatisfactory performance will not commence until the member is offered a reasonable opportunity to overcome his deficiencies. By failing to offer a reasonable opportunity for him to overcome his deficiencies, separation action could not commence. Therefore, the Army violated his due process rights by unlawfully initiating separation proceedings, in violation of Army regulations, and failing to state the reasons for the decision and evidence relied upon. (f) Discharge Review. Personnel records are to be reviewed prior to transition. Anyone reviewing his records should have noticed the plain error of the DA Form, lack of separation documents, and supporting justification. Therefore, either his records were not reviewed or they were reviewed, but in an unsatisfactory manner. This failure allowed his wrongful discharge to occur, despite an opportunity to correct the error and injustice. (g) During transition a careful and thorough review of his OMPF was required. At the very least, the review was to be completed by him and his Admin Section. He was never afforded an opportunity to review his OMPF. By denying him that opportunity he was unable to know of and address the defective DA Form and separation documents. That denial was substantial and prejudiced his separation. Further, the custodian or Admin Section committed egregious error by not addressing the defective DA Form. As AR 635-10(h) specifically requires Article 15 actions be reviewed, the Army had a heightened requirement to review and should have noticed the plain error. (h) Conclusion: He was denied due process and the Army committed procedural and administrative error during separation. Had procedures been followed separation would not have occurred. If proper separation procedures occurred there is substantial doubt that he would have been discharged, or received any discharge but an honorable discharge. For the reason set forth above, there exists errors of law, procedure, and discretion associated with the discharge at the time of issuance and his rights were prejudiced; therefore, his discharge is improper and should be to honorable. (3) His discharge is improper and should be upgraded to an honorable because the Army violated the Federal Administrative Procedure Act prejudicing his separation. (a) A discharge shall be deemed proper unless, in the course of discharge review, it is determined that there exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made) (32 C.F.R. section 70.9 (b)(l)(i)). (b) APA Requirements. APA is applicable to military separations and requires certain procedures be followed. The APA exists to ensure procedures are followed to prevent arbitrary and capricious decisions by agencies. (c) Under the APA, a court may review a military discharge decision to determine if the decision was arbitrary, capricious, in bad faith, unsupported by substantial evidence, or contrary to law, regulation, or published procedure. Title 5 U.S.C. secion 706(2)(A); See Perez v. United States, 850 F.Supp. 1354, (N.D.Ill. 1994). "A decision is arbitrary and capricious if it is not based upon relevant factors, lacks a rational basis, or represents a clear error in judgment." Mcintyre v. United States, 30 Fed. Cl. 207, 213 (1993). The APA requires the Army, like any other agency, to follow its own administrative procedures. Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969). An agency's failure to follow its own established procedures or regulations constitutes a violation of the APA. Crane v. Sec'y of Army, 92 F. Supp. 2d 155, 164 (W.D.N.Y. 2000); Miller v. Henman, 804 F.2d 421, 424 (7th Cir. 1986); Montilla v. !N.S., 926 F.3d 162, 167 (2d Cir. 1991) (holding that" 'where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures'" (quoting Morton v. Ruiz, 415 U.S. 199, 235, (1974)). (d) Separation. He was punished pursuant to a defective DA Form 2627 and involuntarily separated on 16 April 1991. His separation was based on a military record that does not support anything but an honorable discharge. Reviewing his record there exists no factual and accurate record showing cause for separation. Simply, his record does not support a general discharge. (e) Arbitrary and Capricious. When the Service Secretary processed him for administrative separation he relied on erroneous documents. The Army and the Service Secretary had a responsibility to follow its own administrative procedures, and reviewing his OMPF, it is clear that they did not. The DA Form 2627 in his file is obviously flawed. Absent signatures, dates, and the other required pieces could not have been overlooked had a proper examination of his record been performed. Relying on the record, a defective and scathingly erroneous record, the Service Secretary made a clear error in judgment. (f) Army Regulations. The Army failed to follow its own administrative procedure by not affording him the required published procedures contained in FM 27-14, AR 27-10, MCM, and AR 635-10. Specifically, the Army denied him process during an Article 15 adjudication, allowed the filing of a defective DA Form 2627 in his OMPF, and failed to follow separation procedures. His commander's failure and the Separation Authority's failure to follow Army regulations was a violation of the APA. (g) Conclusion: His record contains a single negative record, a defective DA Form 2627. That form, filled with errors constituting plain error, could not be used as basis for his discharge. The Army failed to disclose what evidence it relied upon during separation, failed to provide him with an opportunity to consult with counsel, and failed to ensure proper separation procedures occurred ensuring a lawful and administratively correct determination. These failures are violations of the Federal Administration Procedure Act. The Army violated the APA and in doing so, the applicant has suffered in many ways. He was deprived of property and liberty. He was punished and forced to forfeit $175.00, placed on restriction for 14 days, forced to perform extra duty for 14 days, involuntarily separated resulting in the loss of contractual compensation, and has been denied employment as a result. (4) He should be compensated pursuant to the Constructive Service Doctrine. (a) Under that Constructive Service Doctrine, a service member improperly separated from service is entitled to back-pay from the date of improper separation until lawful separation. The improperly separated service member must show that there was a material error or injustice which led to the improper separation and prove an adequate nexus between the error or injustice and the improper separation. (b) Military personnel who have been illegally or improperly separated from service are deemed to have continued in active service until their legal separation (Clackum v. United States, 296 F.2d 226, 229 (1961)). The basic premise of the constructive service doctrine is to return successful plaintiffs to the position that they would have occupied but for their illegal release from active duty (Barnick v. United States, 591 F.3d 1372, 1379 (Fed. Cir. 2010)). They are, therefore, entitled to back pay and benefits for the intervening period, i.e., retroactive to their original separation from service (Egan v. United States, 158 F.Supp. 377, 386 (1958)). To recover back pay under the doctrine, the former service person must have been improperly separated from the service and there must be a "nexus between the error ... and the adverse action" (Hary v. United States, 618 F.2d 704, 707 (Ct. Cl. 1980) "It is by now established in this court that such a claimant seeking back pay on account of a separation or relief from active duty must show both that (a) there was a material legal error or an injustice in the proceedings of the correction board, or other entity within the military department, which led to the adverse action against him, and also (b) that there is an adequate nexus or link between the error or injustice and the adverse action (e.g., pass over and non-selection for promotion)") (See Sanders v. United States, 219 Ct.Cl. 285 (1979); Skinner v. United States, 594 F.2d 824, 828 (1979); Riley v. United States, 608 F.2d 441, 443, 444 (1979); Guy v. United States, 608 F.2d 867, 872-74, 875 (1979).) To recover back pay, it is not enough for the plaintiff to show merely that an error or injustice was committed in the administrative process; he must go further and either make a showing that the defect substantially affected the decision to separate him or relieve him from active duty, or at least he must set forth enough material to impel the court to direct a further inquiry into the nexus between the error or injustice and the adverse action (Hary v. United States, 618 F.2d 704, 706-07 (Ct. Cl. 1980)). (c) Improper Separation. On 16 April 1991, he was discharged from the Army for unsatisfactory performance. Reviewing his OMPF, a defective DA Form is present and no other adverse paperwork. The courts have repeatedly held that a separation must be supported by the record. His record does not support separation, the separation authority relied on a defective DA Form 2627, and he was denied due process during both NJP and separation. (d) Material Error or Injustice. The DA Form in his record is facially defective. Had he been provided with due process pursuant to NJP, the defective DA Form would never have been placed in his OMPF and would be absent of any "bad paper." Further, had due process been provided, he would not have been punished or separated. Material error and procedural error are present. (e) Led to Improper Separation. The separation authority relied upon the defective DA Form 2627 when separating him. The separation authority's reliance on a defective and invalid form resulted in an improper separation. Further, the separation authority's failure to follow Army separation regulations violated his procedural due process rights. Material error and procedural error led to his improper separation. (f) Nexus. But for the defective form, one of material and legal error, the Separation Authority would have had no basis to initiate separation procedures. Further, the Separation Authority's failure to provide him with his procedural due process rights during separation violated Army regulations. Reliance on the defective DA Form 2627 and failure to provide due process were material errors and injustices that led to his improper separation. (g) Conclusion: For the reasons set forth above, material error and injustice led to his improper separation. The applicant is entitled to compensation pursuant to the Constrictive Service Doctrine. j. Conclusion. The 1991 DA Form 2627 was drafted and placed in his OMPF. There are multiple issues arising from this DA Form: error of fact, law, procedure, and discretion. And, absent such error, he would have received an honorable discharge. The record is absent of conduct deemed unsatisfactory performance other than the defective DA Form 2627. (1) A discharge review is required prior to administratively separating a service member. Reviewing his entire OMPF there is no evidence of a discharge review occurring. A discharge review is a procedural requirement prior to a service member's separation. His OMPF contains no evidence that a required discharge review occurred. As a result he was denied the procedural safeguards required. Because a discharge review failed to occur his procedural due process right were violated. Should the Board determine, under a "presumption of regularity," that a discharge review occurred, there is no evidence that the discharge review board could have used to justify he deserved to be involuntarily separated. His DA Form 2627 was procedurally and administratively defective, therefore invalid, and could not have been the basis for his discharge. (2) For the forgoing reasons we ask this Board to appropriately characterize his discharge, upgrade to honorable, and properly compensate him pursuant to the constructive service doctrine. If anyone is deserving of an upgrade it is the applicant. He has suffered long enough and it is time that he be made as whole as possible, which is long overdue. 3. Counsel provides numerous documents, tabbed and organized as follows: * Exhibit A: DA Form 2627 dated 12 February 1991 * Exhibit B: Records from the National Personnel Records Center containing: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 2627, dated 12 February 1991 * DA Form 2-1 (Personnel Qualification Record - Part II) * Exhibit C: Applicant's personal statement (three-pages typed) * Exhibit D: Applicant's personal statement regarding denied employment * Exhibit E: Same as Exhibit B CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 12 September 1990. After completing his initial entry training, he was awarded military occupational specialty (MOS) 11H (Infantryman – Heavy Anti-Armor Weapons Crewman). Following the completion of his training, he was assigned to Company E, 1st Battalion, 12th Infantry Regiment, Fort Carson, CO. 3. The applicant's record contains numerous hand-written statements from peers, superiors, and his chain of command for a time period from on or about 19 January 1991 through on or about 11 February 1991. These eyewitness accounts and statements, in effect, indicate he exhibited a poor attitude, was instructed on the proper way to stay warm during field training but refused to follow instructions, refused to perform his duties as a Soldier, consistently failed to follow instructions and orders, stated he wanted out of the Army (as it was not the life for him), and disregarded military customs and courtesies. 4. A DA Form 4856 (General Counseling Form), dated 11 February 1991, shows the applicant was counseled and read his rights by his Company Commander based on his conduct during a field evaluation training exercise (Pinon Cannon) and his conduct upon his return to Fort Carson. It indicates he was counseled for potential court-martial charges arising from disrespect to a noncommissioned officer, willful disobedience of a lawful order, insubordination towards a noncommissioned officer, failure to obey a lawful order, intentional loss of government property, malingering, and straggling. It further ordered him to participate (Soldier) in his duties and restricted his off-post privileges. The applicant signed and concurred with the counseling. 5. Another DA Form 4856, dated 11 February 1991, shows his Company Commander again counseled him for separation as a result of his poor performance. Part IV (Rehabilitation) stated that as of 1 March 1991 he was non-responsive, and in Part V (Unit Commander Interview) he was still non-responsive on 11 March 1991 and would be processed for elimination from the Army. The applicant signed and concurred with the counseling. 6. The applicant accepted NJP on or about 13 February 1991 under the provisions of Article 15 of the UCMJ for failing to obey a lawful order from his 1SG to dig a sump for left-over T-rats, or words to that effect, at Pinon Cannon or about 1 February 1991. (The applicant's and commander's signature are very faint, as are the dates.) 7. A DA Form 3822-R (Report of Mental Status Evaluation), dated 6 March 1991, shows the applicant was evaluated by a licensed psychologist and was determined to have normal behavior and was fully oriented and alert, with clear thinking process and normal thought content. He had an unremarkable mood or affect, he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. It further stated he had no psychiatric disease or defect which warranted disposition through medical channels and was cleared for any administrative action deemed appropriate by the command. 8. The applicant's immediate commander notified him on 8 April 1991 of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance. The reason for his proposed action was the applicant's failure to obey a lawful order and refusing to soldier. He further recommended that he receive a general discharge, notified him of his rights, and to respond within seven days for acknowledgement and provide statements. 9. The applicant acknowledged receipt of the proposed separation action on 8 April 1991. He was advised by counsel of the basis for the contemplated action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 and its effects. He elected not to submit a statement in his own behalf. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. 10. His immediate commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance. He stated the applicant's conduct would not improve with rehabilitative attempts on the part of the Army, and he opined that rehabilitation would not be in the best interests of the Army. He further recommended that the rehabilitative transfer requirement be waived in accordance with Army Regulation 635-200, paragraph 1-18d. This action was found to be legally sufficient by the Staff Judge Advocate on 9 April 1991. 11. The separation authority approved the applicant's discharge on 11 April 1991, under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, and directed his service be characterized as under honorable conditions (general). It was also directed the applicant would not be transferred to the Individual Ready Reserve and that the rehabilitative transfer requirement was waived. 12. The applicant was discharged on 16 April 1991. His DD Form 214 confirms he was discharged in accordance with Army Regulation 635-200, chapter 13, for unsatisfactory performance, with a character of service of under honorable conditions (general). 13. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. The ADRB determined he was properly and equitably discharged and denied his request on 6 January 1997. 14. The applicant, through counsel, provides the following evidence that has not been discussed above: a. A self-authored three-page typed statement, wherein he states, in pertinent part: (1) He joined the Army in 1990 because he felt a sense of duty to his country and since his father was in the military as well. After graduating from his MOS training, he was assigned to Fort Carson and started prepping for a field training exercise (FTX). After arriving at the FTX, he repeatedly was being harassed by the white Soldiers, both verbally, physically and mentally. They told the 1SG he was causing trouble and was told to start digging "grave-sized" holes. Upon completing one he was told to lay down in it and dirt was kicked on him and he was told he was going to be killed. He constantly dug holes from 5 am to 10 pm every day for weeks. The situation made him think about when his mother was murdered when he was 12 years old. (2) He was asked by his lieutenant if he had eaten and then was told to get something to eat at 6 pm. However, a corporal, one of the Soldiers tormenting him, told him he could not and ran off to get the First Sergeant. The 1SG instructed others to put him in a track vehicle (with no heat). He was told to close the hatch and then someone slammed the hatch on his head knocking him out. When he woke up he had a lump on his head, was freezing, and he couldn't move or feel his legs. After calling for help, someone called the medics who evaluated him and after ten minutes or so he could slowly walk. (3) After returning from the FTX, he was still teased, especially about his slow mode of walking. He was given an Article 15, he was reduced in rank, forfeited some pay, and was restricted to the barracks. He was contacted by the Red Cross that his grandmother was dying of cancer and needed his assistance in caring for her. His grandmother raised him and was like his mother. (4) The 1SG called him into his office and told him that he was going to be processed for involuntary separation and was getting a general discharge because he didn't follow orders. He states he was never counseled or explained his rights during the entire separation process. (5) After he made it back home he still couldn't walk without pain in his feet; however, he can walk much better now but his legs hurt when it gets cold. He couldn't fall asleep because he had insomnia and was having nightmares about people trying to kill him and started taking melatonin to sleep. He broke up with his girlfriend and fell in a deep depression for a long time. He worked two jobs and worked over 16 hours every day and never spoke to anyone. He had to take care of his dying grandmother as well as his grandfather who had a stroke. In 2009 he received his Bachelor's degree in business administration and in 2011 received a Master's degree in criminal justice. (6) He still has insomnia and nightmares to date due to what happened to him in the Army. He was recently diagnosed with PTSD and insomnia by the VA and is currently on medication for PTSD, anxiety, and insomnia. b. A self-authored typed statement, undated, in which the applicant states, in pertinent part, he was denied a security position with G4S Security on or about 1 April 2015 due to his reason for discharge. He said he was petitioning to have his discharge upgraded and the company representative told him to call back when it is and then he could work for them. The applicant further noted that he have been passed over for numerous government positions that he was qualified for due to his type of discharge. c. He stated he received his OMPF from the National Archives. This attachment contained his request for records, his DD Form 214, DD Form 2627, and DA Form 2-1 (Personnel Qualification Record - Part II) with a review date of 9 January 1991. 15. On 2 December 2016, the Director, Case Management Division, Army Review Boards Agency (ARBA) sent a letter to the applicant requesting medical documents that would support a diagnosis of PTSD in his case. However, he did not respond within the specified timeframe. 16. In connection with the processing of this case, an advisory opinion was obtained on 1 March 2017 from an ARBA clinical psychologist. The advisory opinion states: a. A review was conducted based on his application, records supplied, and a limited review of the Veteran's Administration (VA) records through the joint legacy viewer (JLV). However, there were no records available in his electronic military health care system. b. The applicant was in the Army from 12 September 1990 to 16 April 1991. He had no deployments or combat exposure. Despite numerous counseling and difficulties with performance, he was provided a general discharge by reason of unsatisfactory performance. He signed the relevant paperwork at the time of his discharge and also initialed that he understood the potential impact his discharge could have on his future employability. c. He is asking for an upgrade based on a variety of procedural concerns and complaints that he was tortured during the service by other Soldiers in his unit with the sanction of his 1SG. In May 2014, he obtained a diagnosis of PTSD from a VA provider. He is currently rated 50% service-connected disabled by the VA, though according to records the VA did not count his PTSD as a service-connected disability, a decision the record indicated the applicant was appealing. The basis for the PTSD diagnosis in the VA note of 2014 included controversial claims. First, it accepted the patients' uncorroborated claim that he was tortured by being forced to dig a hole the size of a grave, forced to lie in it, and had peers threatened to shoot him dead in it. He was then, he claimed, forced to dig other graves over a period exceeding a week. Further, the examining provider cited the applicant's having 50 jobs in a 20 year period as evidence that his PTSD was causing functional impairment. The second claim is at odds with a central contention of the applicant, namely that he is otherwise well-qualified person being deprived of employment and advancement as a result of his discharge, not his PTSD. d. The examples of employment failure he cited did not involve rejection by reason of mental health symptoms, but centered on the character of his discharge and the reason for it. His claim of trauma in the Army is uncorroborated. In fact, statements from the time of events undermine the applicant's story. Regarding the digging incident, a fellow Soldier in the grade of corporal (CPL) wrote that on 1 February 1991, he and the applicant were on a "digging detail." He wrote that the applicant got out of the hole they were digging at 1845 to go to eat. It was explained to him that food was being delivered to them, and he was ordered to keep digging with him. The applicant is described as refusing to do so. The 1SG was notified and he ordered the applicant to dig until "12 midnight and then start again at 0400 hours." The CPL wrote the applicant's reply was "I can't." and the 1SG said, "What?" and his reply at that time was "No." The CPL said he said things like "America is spelled AMERIKKKA. We're all slaves in a communist Army. Honky this & that." The statement was signed by the corporal. e. Other signed statements cover numerous occasions on which the applicant was refusing orders, was present where he had a duty not to be, or was in other trouble. There is a signed statement on 11 February by a captain and the applicant's then commander that listed for him possible court-martial offenses that included disrespect of a commissioned officer, willful disobedience of a lawful order, insubordination to an NCO, intentional loss of military property, malingering, and straggling. f. The applicant's pre-discharge mental status exam noted no symptoms and judged him fit for administrative discharge. There is no independent corroboration of the applicant's contentions. Further, there were no VA diagnoses of mental health disorders in the available records prior to 2014, more than 20 years after the alleged events. Further, the applicant referenced a possible TBI from having a hatch closed on his head. There is no evidence of that in records, other than the applicant's report, and no showing of functional impairments as a result. VA diagnoses, of course, are made on a different basis than diagnoses in the Army. For example, VA providers tend to rely on what the veteran tells them without corroboration. In any event, there is no basis for mitigating the multiple instances of misconduct that can be identified when one reads statements from other Soldiers at the time of the applicant's service. g. Accordingly, the applicant met medical retention standards in accordance with chapter 3, Army Regulation 40-501 and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service. His medical and mental health conditions were duly considered during separation processing. h. A review of available documentation did not find evidence of a mental health condition or conditions that warrant a change to the character of the discharge in this case. A nexus between his unsatisfactory performance and a mental-health condition was not discovered. 17. The advisory opinion was provided to the applicant on or about 3 March 2017, for informational purposes and to afford him the opportunity to provide rebuttal comments. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires 2. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 3-7a provides that 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. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 3. Army Regulation 635-10 (Processing Personnel for Separation), in effect at the time, establishes standardized transition processing policies for all military personnel centers, personnel service companies, and personnel service divisions as well as final transition processing policies at U.S. Army Transition Points and U.S. Army Transition Activities. 4. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides guidance on the various medical conditions and physical defects that may render a Soldier unfit for further military service, and that fall below the standards required for service. These medical conditions and physical defects, individually or in combination, are those that: significantly limit or interfere with the Soldier's performance of their duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service. 5. Title 5, U.S. Code, section 551, established the Administrative Procedure Act (APA) that governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking. In addition to setting forth rulemaking procedures, the APA addresses other agency actions such as issuance of policy statements, licenses, and permits. It also provides standards for judicial review if a person has been adversely affected or aggrieved by an agency action. 6. Title 5, U.S. Code, section 706, under the judicial review chapter, covers the scope of judicial review of agency actions. The reviewing court shall: a. compel agency action unlawfully withheld or unreasonably delayed; and b. hold unlawful and set aside agency action, findings, and conclusions found to be: * arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law * contrary to constitutional right, power, privilege, or immunity * in excess of statutory jurisdiction, authority, or limitations, or short of statutory right * without observance of procedure required by law * unsupported by substantial evidence in a case subject to other sections of this title or otherwise reviewed on the record of an agency hearing provided by statute * unwarranted by the facts to the extent that the facts are subject to trail de novo by the reviewing court 7. In reference to court decisions and the application of conditions related to service credit, "Constructive Service Doctrine" was recognized as a way to entitle/permit the award of back-pay to a service member who was injured by the improper termination of his service, and thereby denied the financial and other benefits he/she should and would have received until the date they would have lawfully separated but for the improper termination. The improperly separated service member must show that there was a material error or injustice, which led to the improper separation, and prove an adequate nexus between the error or injustice and the improper separation. DISCUSSION: 1. The applicant and counsel request that the applicant's under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The applicant, through counsel, contends his discharge was improper and should be upgraded on a procedurally and facially defective DA Form 2627, and as a consequence of separation procedures that were violated. 3. With respect to these contentions, the applicant's record contains numerous eyewitness accounts (via statements for the chain of command) of the applicant's behavior, disrespectfulness, poor attitude, poor performance, wanting out of the Army, and failure to follow instructions and obey orders during the FTX in which the applicant alludes to. 4. As a result of his poor attitude and poor performance, his Company Commander, via DA Form 4856, counseled him on 11 February 1991, documenting his behavior and performance as well as the potential for court-martial charges arising from his conduct on the FTX and at Fort Carson. These potential infractions were: being disrespectful to a noncommissioned officer, willful disobedience of a lawful order, insubordination towards a noncommissioned officer, failure to obey a lawful order, intentional loss of government property, malingering, and straggling. It further ordered him to participate ("Soldier") in his duties and restricted his off-post privileges. The applicant acknowledge this counseling by signing and dating his concurrence on the form. 5. On another DA Form 4856, his Company Commander, on the same date, counseled him for potential separation as a result of his poor performance. It further shows he was afforded the opportunity to rehabilitate his behavior and performance but as of 1 March and again on 11 March 1991, he failed in his opportunity and was determined to be non-responsive and would be processed for elimination from the Army. The applicant once again signed, dated, and concurred with the counseling. 6. Subsequent to this counseling, he was considered for and accepted NJP, under the provisions of Article 15 of the UCMJ, on or about 13 February 1991, for the misconduct of failing to obey a lawful order from his 1SG to dig a sump for left-over T-rats, on or about 1 February 1991. He was notified of his rights and it appears he was given the time required to consult with counsel. Only copy 5 of the DA Form 2627 appears in his record, and although very faint, it appears to have block checks, signatures, and dates of both the applicant and imposing commander in all the appropriate places, to include the appeal process. 7. The composition of DA Form 2627 consists of an original and 5 copies of the form with carbon paper in between each sheet. His official record contains only copy 5, which, as the last page, would have caused dates and signatures to be very faint and very difficult to read. As a result, normal photocopying of this copy of the form would, in essence, fail to adequately show these entries unless the photocopier was placed on a dark setting. The whole contention of the applicant and his counsel was the DA Form 2627 did not contain the signatures and dates of the applicant and commander, thereby causing an error or injustice in his separation. 8. On 8 April 1991, his chain of command initiated separation against him, some two months later, for unsatisfactory performance in accordance with applicable Army regulations. Additionally, he reviewed and signed his separation documents, which eventually culminated with his signature on a DD Form 214. 9. The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 10. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial and credible evidence to support a claim. In this case, the appliance and counsel have provided no information that would indicate the contrary. 11. The applicant and counsel contend that as a result of his improper discharge he should have his discharge upgraded and be compensated as a result of the APA and the constructive service doctrine. Since it appears there is no error or injustice in the processing of the DA Form 2627 and his separation process, these contentions appear to be have no merit. 12. He also contends he suffered from PTSD and other behavioral health concerns as a result of his active duty service. The applicant's record does not contain evidence that shows he failed to meet retention criteria in accordance with Army Regulation 40-501 nor any evidence he was diagnosed with having a physical disability that prevented him from reasonably performing his military duties while serving on active duty. 13. The ARBA clinical psychological opined, after a thorough review of his available medical records, that all his medical conditions were appropriately evaluated at the time of his discharge. In addition the advisor stated: a. The applicant's military pre-discharge mental status exam noted no symptoms and judged him fit for administrative discharge. There were no mental health disorders. b. The review of his VA records indicated the first PTSD diagnosis was in May 2014 and did not consider the PTSD to be service-connected. c. A review of available documentation did not find evidence of a mental health condition or conditions that warrant a change to the character of the discharge in his case. A nexus between his unsatisfactory performance and a mental health condition was not discovered. 14. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002057 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002057 20 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2