ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20160014183 APPLICANT REQUESTS: upgrade of general, under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement 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: a. His first duty assignment after completion of Basic Combat Training and Advanced Individual Training was TDC-Korea. His duty assignment was a driver for a lieutenant colonel. He left Korea and was assigned to Fort Springs, CO. b. After he arrived in Colorado, this was where his challenges began. His company commander looked at his records and noticed that he was from Boston, MA. The commander stated that he did not like Boston because he was assaulted there. The commander then proceeded to ask the applicant if he like to fight and the applicant responded not unless it was the enemy. The commander stated to him that he would be watching him and they would be real close. c. When the applicant reported to his assigned room, he found that the only bunk available in the room was being used as storage by the other Soldiers assigned to the room. When he asked the other Soldiers to move their belongings they refused, so the first night he slept on the floor. He later reported this situation to the first sergeant who told him to handle it. So the applicant asked the other Soldiers again to move their belongings. When they refused, the applicant began to move their things from the bunk a. and placed the items between the bunks and lockers. The other Soldiers then went to the first sergeant, the first sergeant came into the room and asked what was going on. But he left the room without resolving the issue but the applicant was able to keep the bunk. He roommates then began to steal his equipment, which he would have to replace at his own expense. He was reprimand when items, that he believed to be stolen, were missing during an inspection. Another incident with his roommates was when one of the Soldiers would misplace his keys and would force open the door and his roommates would blame the applicant and he received an Article 15 and had to pay for the damages. He also had to stand guard at the door for 36 hours straight. d. The applicant received letters from his family about his mother’s failing health and when he went to his first sergeant and told him about it, the only thing that the first sergeant stated was, “where are you supposed to be?”, the applicant replied, “the motor pool” and the first sergeant told him to get there. He began to get depressed because he was unable to help his mother. He tried to go to the company commander but he reprimanded the applicant for not going through the chain of command. He told the commander that he already talked with the first sergeant and the commander told him to get out. He felt trapped. Then someone from his family contacted the Red Cross who contacted the applicant’s commander, not long after this meeting the applicant had an airplane ticket home. The first sergeant was upset about this and stated that they only allow you to go home for a death not a cold and he was referencing his mother cancer. e. Upon the applicant’s return to Colorado, his situation got worse, the only time anyone would speak to him was to reprimand him. He was pulled out of formation and told to get all of his gear. When he asked why the first sergeant did not answer. When he asked the question again about half way through the inventory, he was told that he was being discharged and that no one wanted him there and the commander could not stand to look at his face. The applicant asked why he was being discharged they told him that they had enough of him and now they could discharge him. The applicant told the commander and first sergeant that he was to see legal but why would not allow it. f. He did not have access to his records, anyone who had any knowledge about the situation from 30 years ago were gone, and he hopes that his statement is sufficient. He did not know that he could petition the Board to request consideration to have his discharge upgraded. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 26 June 1984. b. He served in Korea from 15 October 1984 to 14 October 1985. c. He was advanced to private first class (PFC)/E-3 on 1 March 1985. a. d. He was reduced to private (PVT)/E-2 on 23 April 1985; the reason for the reduction is not available for review. e. He accepted nonjudicial punishment (NJP) on 11 February 1986 for failure to obey a lawful order from a noncommissioned officer which was his duty to obey. His punishment included reduction to PVT/E-1. f. He accepted NJP on 28 February 1986 for wrongful use of marijuana. g. On 7 March 1986, the unit commander recommended the applicant be issued a Bar to Reenlistment Certificate for two Article 15s; disobeying a lawful order and wrongful use of marijuana and several counseling statements for: * missing formation * substandard performance * positive urinalysis * late for formation * failure to meet minimum physical fitness standards * disobeying lawful order h. Consistent with the chain of command recommendation, the battalion commander approved the bar to reenlistment on 23 March 1986. i. On 27 March 1986, a report of mental status evaluation was completed on the applicant, which stated that he did not have a history of mental illness. No psychiatric illness was present at that time and he was psychiatrically cleared for any administrative action deemed appropriate by the command. j. On 4 April 1986, the applicant’s unit commander notified him that he was recommending him for separation under provisions of chapter 14 (Separation for Misconduct), paragraph 14-12b (Pattern of Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) for a pattern of misconduct that consisted of disobeying a lawful orders, assault, failure to go to appointed places of duty without authority, absent from appointed places of duty without authority, poor duty performance, and wrongful use of marijuana. The counselings and nonjudicial punishment had been ineffective. k. On 4 April 1986, the unit commander initiated separation proceedings on the applicant under the provisions of paragraph 14-12b, AR 635-200 and recommended that he be separated from the service. l. On 10 April 1986, the applicant acknowledged the notification of separation under the provisions of paragraph 14-12b, AR 635-200. He acknowledged: a. * he had been advised by legal counsel of the separation and its effects * the separation could occur under general court-martial proceedings and if so he could be furnished an other than honorable discharge certificate * if separation was under the general court-martial he could appear before the board * he would submit statements in his own behalf * he requested representation by counsel * he may encounter substantial prejudice in civilian life * he may be ineligible for many or all benefits as a veteran under both Federal and State law * the discharge is not automatically upgraded that he may apply to the Army Discharge Review Board or the Army Board for Corrections of Military Records and the act of consideration by either board does not imply the upgrade of the discharge * he was not eligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge m. On 21 April 1986, the Elimination Section drafted a Memorandum for Record stating that the applicant was provided reasonable time to submit statements in his own behalf and he had failed to do so and the packet would be processed for action. n. On 25 April 1986, the chain of command recommended that the applicant be separated under the provisions of chapter 14, AR 635-200 for a pattern of drug abuse, poor duty performance, and misconduct on and off duty and recommended approval of the rehabilitative waiver. o. On 5 May 1986, the separation authority approved the separation under the provision of chapter 14, AR 635-200, waived any further rehabilitation and the applicant be furnished a general under honorable conditions discharge certificate. p. He was discharged from active duty on 13 May 1986 under the provisions of paragraph 14-12b, AR 635-200 with a general under honorable conditions characterization. His DD form 214 shows that he completed 1 year, 10 months, 18 days of active service. It also shows that he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rife Bar (M-16) 4. In the processing of this case, an advisory opinion, dated 24 April 2019, was received from the Army Review Boards Agency Medical Advisor. The advisory official found no relevant data to mitigate the applicant’s pattern of misconduct. 1. 5. The applicant applied to the Army Discharge Review Board and on 5 April 1995, his application for an upgrade of his discharge was denied. 6. By regulation 635-200 (Personnel Separation – Enlisted Separations), states members are subject to separation for a pattern of misconduct. A pattern of misconduct consisting of (1) discreditable involvement with civil or military authorities, (2) conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violate of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulation, the civil law, and time honored customs and traditions of the Army. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for a pattern of criminal offenses and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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. 7/22/2019 X CHAIRPERSON Signed by: 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 Separation – Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14-12b states members are subject to separation for a pattern of misconduct. A pattern of misconduct consisting of (1) discreditable involvement with civil or military authorities, (2) conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violate of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulation, the civil law, and time honored customs and traditions of the Army. b. 3-7a (Honorable Discharge), states an honorable discharge is a separation with honor. 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that 1. might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//