BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002741 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 BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002741 BOARD DETERMINATION/RECOMMENDATION: 1. 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 Army Board for Correction of Military Records set forth in Docket Number AR20150000476, dated 6 October 2015. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending the separation authority. _____________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. BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002741 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 prior request for an upgrade of his discharge under other than honorable conditions (UOTHC) to honorable. As a new issue, he requests correction of the separation authority to show Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14. 2. The applicant states: a. He wishes to submit information about himself growing up and his experiences in the U.S. Army, which he thinks will lend insight into his character and help the Board better understand what he experienced. His parents believed in discipline; thus, he always strived to be the best he could be at whatever he did. He earned numerous awards and accolades for sports, band, the Rotary Club, and received a scholarship from Lockheed Aircraft. b. At the age of 19, he and his high school sweetheart found out they were going to have a baby and he decided the military would be able to provide the most steady income for raising a family; thus, he joined the Army. He excelled in basic combat training, serving as the guidon bearer, completing the 15-mile march when most of the battalion did not, completing the gas chamber exercise, performing well at the range, and being the runner-up for Soldier of the Cycle. That is when he started having problems with his feet. After seeking medical evaluation, he was informed his arches were falling and the doctor told him the condition was severe enough to warrant a medical discharge. He decided to decline the medical discharge, because at 20 years old, it just didn't seem like a good option for him. He felt everyone in his platoon looked up to him and he didn't want to let them down. c. His first duty station was Fort Riley, KS, where he found an apartment, got settled in, then requested leave to go home to California to get his wife and son to bring them back to Kansas. Being so young and away from her parents was challenging for his wife and she decided to move back home. He used the 5 days of leave they were given to travel to California right after Christmas and into the new year. Since he had duty on 30 December 1989 during the holiday period, he asked a fellow Soldier to swap duties with him. He didn't learn he had been considered absent without leave (AWOL) the entire time because Private D____ showed up to duty late until his return to Fort Riley, KS, from the holiday break on 2 January 1990. Even though Private D____ admitted to swapping duties with him, he was still charged with being AWOL and given nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). d. He was reduced in rank and given extra duty requirements in conjunction with his NJP, which constitutes being punished twice for the same infraction. His first sergeant made him do all kinds of extra duty without receiving credit for the work, such as scrubbing toilets, cleaning all the bathrooms, and trying to humiliate him by having him ride the lawn mower from the motor pool to the barracks for everyone to laugh at him. He sought advice at the Judge Advocate General's office afterward, where he was told these practices were unsafe and he did not have to be subjected to ridicule. When he told his first sergeant what he was advised, he was written up and called the "new barracks lawyer." This type of harassment continued for almost a month before finally settling down. e. He did not know at the time, but the AWOL charges were not dismissed even though he was told they would be. He was also unaware that his first sergeant requested his discharge at that time as well. In April of that same year, he requested 2 weeks of leave and he had 27 days of accumulated leave. His request went through the proper chain of command and even went before the chaplain who recommended granting him leave to help his wife get adjusted to the idea of moving back to Kansas. Despite the endorsement from the chaplain, his first sergeant denied his leave request, stating he already had one strike against him because his wife was white. f. He felt very desperate because his family needed him and he had to deal with racism and discrimination from those who were supposed to be leading by example. He made a choice to temporarily go home to California to comfort his wife and son and try to help them understand how returning to Kansas was the best choice for their family. He was gone for 29 days and he was again charged with being AWOL when he returned to Fort Riley. Now he had two charges of AWOL – although the first charge was to be dropped – so they could try to prove there was a pattern of misconduct in his behavior. g. He realizes going home for 29 days was a bad judgement decision on his part, but the way he was treated in the military was not just, legal, never addressed, and continued to get worse until he finally chose discharge over transfer to another platoon. He has always been an upstanding citizen and Soldier, despite the fact that people will only remember the mistakes one makes. What happened to him was unjust and he did not deserve the discrimination, racism, or humiliation he endured. h. These events have affected the rest of his life. It was difficult to find a way to support his family after being discharged as he was. He subsequently went through a divorce and suffered humiliation from the leaders in his platoon, as well as the humiliation he faced outside of the military. He experienced racism first-hand from those he was supposed to be able to look up to and admire. i. He asserts his separation under the provisions of chapter 10 of Army Regulation 635-200 should have been under the provisions of chapter 14, but the command manipulated the system to make it look as though it was a separation under the provisions of chapter 10. He accepted the discharge because the harassment he received at the time was so great and the legal officer helping him to fight the discharge action told him he would be able to appeal the action at a later date. 3. The applicant provides: * a letter from his Member of Congress, dated 4 January 2016 * Privacy Release Authorization Form, dated 22 December 2015 * self-authored statement * change of address notification * letter from the Army Board for Correction of Military Records, dated 7 October 2015 * Standard Form 93 (Report of Medical History), dated 9 January 1990 * Standard Form 88 (Report of Medical Examination), dated 9 January 1990 * DA Form 3081-R (Periodic Medical Examination), dated 19 September 1990 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records in Docket Number AR20150000476 on 6 October 2015. 2. The applicant provided new evidence, reports of medical history and examination and a periodic medical examination, as well as a new argument that his discharge should have been under the authority of Army Regulation 635-200, chapter 14 in lieu of chapter 10. This new evidence and new argument were not previously considered by the Board and warrant consideration at this time. 3. He enlisted in the Regular Army on 29 September 1988. 4. His records contain numerous DA Forms 4187-E (Personnel Action) and DA Forms 4187 (Personnel Action) that show his duty status was changed on the following dates in the manner indicated: * 28 December 1989 – from present for duty (PDY) to AWOL * 2 January 1990 – from AWOL to PDY * 19 April 1990 – from PDY to AWOL * 18 May 1990 – from AWOL to PDY 5. He provided a Report of Medical Examination, which shows he was examined at the Irwin Army Community Hospital on 9 January 1990 for the purpose of discharge. The form was completed by a physician and it shows he had no physical abnormalities, had a physical profile rating of all 1s, and was qualified for separation. 6. On 14 August 1990, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, because of two charges of being AWOL that were preferred against him. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He elected not to submit statements on his own behalf and waived a physical examination. 7. On 23 August 1990, the separation authority approved his request for discharge and directed characterization of his service as UOTHC. 8. On 19 September 1990, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 10 months, and 17 days of total active service with lost time from 28 December 1989 through 1 January 1990 and from 19 April 1990 through 17 May 1990. The separation authority for his discharge is shown as Army Regulation 635-200, chapter 10. His service was characterized as UOTHC. 9. There is no evidence of record the applicant endured harassment or racism at the hands of his chain of command or the authority for his discharge was initially intended to be Army Regulation 635-200, chapter 14, for patterns of misconduct in lieu of chapter 10 in lieu of trial by court-martial. 10. On 6 October 2015, the Army Board for Correction of Military Records denied his request for a discharge upgrade. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. A discharge under other than honorable conditions was normally appropriate for a Soldier who was discharged in lieu of trial by court-martial. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record during the current enlistment. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. c. 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. d. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10. Discharges under the provisions of chapter 10 are voluntary requests for discharge from the Army to avoid trial by court-martial. The evidence shows he was AWOL on two occasions, from 28 December 1989 through 1 January 1990 and again from 19 April 1990 through 17 May 1990. By the applicant's own account, he accepted NJP under the UCMJ for two counts of AWOL, which are offenses punishable under the UCMJ and could have resulted in a punitive discharge. 2. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 3. Although he contends he was discriminated against by his first sergeant and his separation packet was manipulated to modify the authority for his discharge from chapter 14 for patterns of misconduct to chapter 10, there is no evidence to support these contentions. 4. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002741 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002741 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2