ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2019 DOCKET NUMBER: AR20160014593 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he was unaware of the type of discharge he received, but was advised by his commander he would not receive benefits. He got into a lot of trouble defending himself against a racist group [skin heads] in the same unit as him; who attacked him on numerous occasions. He received several injuries and currently suffering. An investigation was conducted where he identified suspects/individuals, he is unaware of any outcome because he was discharged. 3. On 17 October 1994, the applicant enlisted in the Regular Army. His race shows as "Black". He completed 15 weeks of one station unit training (OSUT), was awarded military occupational specialty 13B (Cannon Crewmember) and on 17 February 1995, he was assigned to Headquarters, Headquarters Battery A, 3rd Battalion, 8th Field Artillery Regiment, Fort Bragg, NC. 4. His record shows, he received 11 counseling statements between 22 March 1995 and 28 April 1995 (37 days), on: * 22 March 1995 for disobeying a lawful order * 27 March 1995 for disobeying a lawful order, disrespect to NCO’s, and driving while intoxicated * 30 March 1995 for failure to report * 4 April 1995 for failure to report * 6 April 1995 for failure to meet physical fitness standards * 21 April 1995 for failure to return back to appointed place of duty, failure to adhere to chain of command guidelines, and a second counseling for failure to report * 24 April 1995 for disobeying a lawful order and failure to report * 25 April 1995 for failure to report * 26 April 1995 for failure to report and failure to follow or adhere to instructions. * 28 April 1995 for failure to report and missing movement 5. The applicant accepted nonjudicial punishment (NJP) on 3 April 1995 for disobeying a lawful order and on 17 April 1995 for driving while drunk and a memorandum from his garrison commander suspending his driving privileges for one year. 6. On 9 May 1995, he completed a mental status evaluation. The examiner found he met physical retention standards and he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. He was psychiatrically cleared for any administrative action deemed necessary by his command. 7. On 15 May 1995, he was given a memorandum of reprimand for driving while intoxicated during the period of his driving privileges being suspended. 8. His record provides a copy of his separation packet, it shows: a. On 13 June 1995, his unit commander notified him that he was initiating action to separate him under the provisions of paragraph 14-12b of Army Regulation 635-200 for patterns of misconduct. The reasons for the proposed action were the applicant's repeated acts of misconduct, to include failing the Army Physical Fitness Test, driving while intoxicated, suspension of driving privileges, disobeying a lawful order. The seriousness of the circumstances were such that his retention would have an adverse impact on military discipline, good order, and morale. His commander recommended he receive a general discharge, advised him of his available rights and requested the rehabilitative transfer required by Army Regulation 635-200, Chapter 1, paragraph 1-18 be waived since rehabilitation would not be in the best interest of the Army as it would not produce a quality Soldier. b. The applicant submitted a statement acknowledging that he had received a copy of the letter notifying him of the basis for the contemplated separation action against him for misconduct, he was made aware of his available rights and did not desire to consult with legal counsel or to submit statements in his own behalf. c. The applicant's intermediate commanders recommended approval of the applicant's separation for a pattern of misconduct with a discharge of other than honorable conditions. The appropriate authority approved the recommendation for discharge of the applicant and directed he be issued an UOTHC discharge certificate. 9. On 26 June 1995, the U.S. Army Criminal Investigation Command (USACIDC) provides an incident summary. The applicant reported that he had been assaulted. An investigation shows that at 2115 hours, on 26 June 1995, another Soldier exposed their groin area and made provoking sexual speech and gestures toward the applicant. The applicant then struck the individual one time with [not identified]; the applicant then struck again and was apprehended along with others, transported to the PMO, advised of their rights which the applicant and others waived rendering statements. The applicant was further processed and released to his unit without requiring medical attention. 10. On 12 July 1995, the applicant was discharged under the provisions of paragraph 14-12b, Army Regulation 635-200. He completed 8 months and 26 days of net service with a characterization of UOTHC. 11. The applicant states he got into a lot of trouble defending himself against a racist group. His records shows he was black male in MOS 13B, assigned to Fort Bragg, NC in 1995. Within 37 days of completing OSUT and reporting to his unit of assignment he received a total of 11 counseling statements over and NJP for failure to repair and driving while drunk. His unit commander notified him of the intent to separate him for misconduct within 70 days of his assignment and requested rehabilitative requirements according to regulation be waived, stating rehabilitation would not be in the best interest of the Army as it would not produce a quality Soldier. 12. Army Regulation 635-200 provides states members are separated under chapter 14 because of minor disciplinary infractions, pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 13. In reaching its determination, the Board should consider the applicant's statement, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board finds the applicant's discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. The Board finds his separation was both proper and equitable. 2. Furthermore, the applicant had multiple patterns of misconduct during his 8 months and 26 days of net service. The applicant's repeated acts of misconduct, to include failing the Army Physical Fitness Test, driving while intoxicated, suspension of driving privileges, disobeying a lawful order, and the seriousness of the circumstances were determined by his commander such that his retention would have an adverse impact on military discipline, good order, and morale. 3. The Board acknowledges the actions from the racist group and his military sexual trauma. Unfortunately, the greater weight of evidence, even when applying liberal consideration standards, does not indicate that the applicant’s duty performance and behavior generally met the standards of acceptable conduct and duty performance as described in AR 635-200. Consequently, the applicant has not demonstrated by a preponderance of evidence that an honorable discharge is warranted. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. d. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. (2) Paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. d. Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160014593 4