ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:     9 April 2019

	DOCKET NUMBER:  AR20160014162


APPLICANT REQUESTS:  The applicant requests his general under honorable conditions discharge be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Letter from Counsel
* Florida Certificate of Live Birth

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 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 through his counsel:

	a.  On 6 July 1977 the applicant enlisted in the Army.  He served his full 3 years per his enlistment contract.  While serving he completed an 8 week training course in order to become a Food Service Specialist along with earning an expert badge for his M-16 Rifle.

	b.  Although the applicant declined reenlistment at the end of his term, turning down a $25,000 reenlistment bonus, it was due to the copious amounts of abuse he was subjected to by his superior officers and noncommissioned officers in 1977.  He was brutally attacked at Camp Thompson, South Korea while assigned to the 55th Ordinance, an ammunition camp site.  He was escorted to the mess hall where the master sergeant (MSG) took a paring knife to his pinky finger as a form of punishment.  Afterwards, he was beaten unconscious by others instructed to by that same MSG.  

	c.  Today he lives with the fear and disabilities resulted from that horrible night.  He feels the attack was, to a certain extent, a result of racial discrimination.  Being a black man serving his country in no way should have ever merited this level of harsh in propriety.

	d.  Not only did the applicant undergo said abuse, he was also illegally enlisted into the Army in 1977.  When working with his recruiter, the recruiting officer forged his live birth documents making him older than he was.  The applicant was a month shy of being 16 years old, so all documents were altered without parental consent.  He was sent to war as a child.

	e.  After an honorable completion of term, he was discharged with a characterization of "general under honorable conditions."  The authority of separation was under Army Regulation (AR) 635-200, Chapter 2 and separation code "LBK."  We feel he was unjustly denied an "honorable" discharge.  There was no reasons as to why the authority made the decision for a general discharge.  On behalf of the applicant, they ask for a reconsideration to include upgrade to a full honorable discharge. 

3.  On 6 June 1977, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 3 years.  He served in Korea from 31 December 1977 to 30 December 1978.

4.  A review of his records show he accepted nonjudicial punishment (NJP) on:

* 17 November 1977 for breach of peace
* 31 July 1979 for wrongfully committing an indecent act with a female
* 25 January 1980 for wrongfully inducing a Soldier to violate a lawful written regulation and being absent from his place of from on or about 0400 hours, 20 July 1979 to 0515 hours 20 July 1979

5.  On 6 June 1980, the applicant was barred from reenlistment.  The bar to reenlistment shows the applicant received NJP; he received a letter of indebtedness for $1,303 which he was making monthly payments to resolve; he was a rehabilitative transfer and was unable to meet the minimum standards; he continually wrote bad checks to several agencies; he had a poor rapport with his co-workers, and consistently disobeyed his supervisors.  The certificate shows there was a continuation sheet but it is unavailable for review.

6.  Two Disposition Forms dated 11 April 1980 show: 

	a.  The unit commander recommended the applicant not be awarded the Army Good Conduct Medal due to receiving three Article 15's, outstanding indebtedness, and writing numerous bad checks.  

	b.  The applicant was reaching his Expiration Term of Service (ETS) on 5 July 1980 and his unit commander intended to separate him with an under honorable conditions (general) discharge.  The form contains a handwritten note "Statement sent 27 May 1980/regarding Gen. [general discharge].

7.  His records contain a personnel qualification record which shows he was awarded or authorized:

* Expert Marksmanship Qualification Badge
* Army Service Ribbon
* Foreign Service Ribbon

8.  Although his service was not characterized in his DA Form 2-1 the Disposition Form dated 11 April 1980, shows the commander intent was to characterize his service as under honorable conditions (general).

9.  On 5 July 1980, the applicant was released from active duty with a general under honorable conditions discharge.  He completed 3 years net active service this period.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the M-16 Rifle qualification badge.

10.  The applicant provides his Florida Certificate of Live Birth which shows the applicant born on 6 August 1960, which is a discrepancy with the birth date shown on his enlistment contract, i.e., 6 August 1959.

11.  The applicant states at the time of his enlistment, the recruiter altered his birth certificate and he was one month shy of his 16th birthday.  His record shows he enlisted at the age of 17, he received three NJPs and he was barred from reenlistment.  He also contends in 1977, he faced copious amounts of abuse from the officers and NCOs because of racism.  

12.  In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the short term of service prior to multiple occasions of misconduct, some extremely serious in nature, the Board concluded that the characterization of service received at the time of discharge was appropriate.  

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:x	:x	:x	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis 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.

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 Army Board for Correction of Military Records (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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for the separation of enlisted personnel from the Regular Army.  

	a.  Chapter 2 established policy and prescribed procedures for separating enlisted personnel.  Paragraph 2-2 states the periods of military service required of all members of the Army will be in accordance with applicable laws.  Periods for which members are ordered to active duty are prescribed by law.  A member enlisted or ordered to active duty normally will be discharged or released from active duty on the date upon which he completes the period for which enlisted or ordered to active duty (expiration term of service).

	b.  Paragraph 1-13 (Types of administrative discharges/character of service) states:  

		(1)  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.

		(2)  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.  

	c.  Paragraph 1-14 states a member will be discharged or released from active duty in accordance with paragraph 2-2 and the prescribing program under which he is being separated.  In determining the type of discharge certificate or character of service, the following will be used as guidelines:

		(1)  A member is entitled to an honorable discharge if exempt evidence is improperly included by the Government in the discharge proceedings.

		(2)  The following will not be considered in determining the type of character of separation:

* preservice activities except in cases of misrepresentation of facts which affected the Soldier’s eligibility
* prior service activities such as records of convictions by courts-martial, NJP, etc.
* mental status evaluation or similar medical evaluation

		(3)  Character of service will be determined only by the Soldier's military record of the current enlistment or current period of service, which includes a Soldier's military behavior and performance of duty.

		(4)  A Soldier's record of current enlistment or his current period of service, only, will be carefully screened for data which would have a bearing on the final decision as to type of discharge certificate to be awarded.

	d.  Paragraph 1-15b states:

		(1)  The unit commander of the last unit to which the member was assigned or attached prior to his separation processing at the separation facility will determine the type of discharge certificate and character of service as part of the processing required by AR 635-10 (Personnel Separations – Processing Personnel for Separation).  If the immediate commander is not a field grade officer and determines that a general discharge certificate should be issued, a field grade officer in the chain of command will review the member's military record and may change the character of separation to honorable if that is indicated as appropriate. 

		(2)  The officer characterizing the service will:

* review only the member's military record for the current enlistment or of his current period of service and determine the character of service to be awarded in accordance with the governing criteria under AR 635-200, paragraphs 1-13 and 1-14.
* enter in the "Remarks" section of the DA Form 2-1 the character of service to be awarded upon separation
* when service is not characterized as honorable, include the specific basis for the characterization in section V, item 27 and the member will be informed

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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

ABCMR Record of Proceedings (cont)	 AR20160014162


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