ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 March 2019 DOCKET NUMBER: AR20160015290 APPLICANT REQUESTS: an upgrade from Under Other Than Honorable to an Honorable discharge. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Individual Infantry Training Certificate * Airborne Course Certificate, Air Assault Course Certificate * Army Commendation Medal * Certificate of Achievement (Operation Desert Storm) * Letters of Endorsement * Bachelor of Science Certificate * Doctor of Osteopathic Medicine Certificate * Completion of Internship Training Certificate * Completion of Advanced Life Support Obstetrics Certificate * Completion of Advanced Pediatric Life Support Certificate * Family Medicine and Osteopathic Manipulative Treatment Certification * Michigan Department of Licensing and Regulatory Affairs, Physician License FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 requests the Board grant him the same consideration as was given to his teammate’s previous Army Board for Correction of Military Records (ABCMR) case. He and his teammate received the same discharge due to the same offense. The Board granted him an honorable discharge. He would like to be allowed to serve once again. The applicant further states, with consideration of his entire enlistment conduct, the punishment was severe for the offense committed. 3. The applicant provides the following background: * his team went to collect a load of MREs that were not recovered after a field exercise in Jan 1992 * they were pulled over by the military police, escorted to the station and questioned; during the process comments of committing larceny and having to serve 25 years in Leavenworth were mentioned * knowing that the MREs were abandoned in the field, they became very nervous and lacking common sense and discretion, made things worse by not explaining in detail what was going on and instead letting the process continue * upon his return from time in Panama, the tone of his team 3 changed drastically and shortly after 32 hearings began and they were given an administrative discharge under other than honorable conditions * after he was discharged, he worked as a machine builder/welder while attending Central Michigan University; earned a Bachelor of Science degree in Biology * graduated from medical school and has his board certification and presently the Chief of Staff at a critical access hospital * he is also the Medical Director of hospice and holds extensive training in pain management * he holds a special certification in addiction medicine and proficient in obstetrics and management of obstetrical emergencies. * for years he tried to convince himself what happened was behind him; he told himself that he served in Iraq during Operation Desert Storm and was part of the 101st Airborne and that was enough; however that was not the case * his teammate who was discharged similarly as him for the same offense told him six months after they were discharged, he appeared before the Board, explained the situation, and was granted a honorable discharge * his teammate reenlisted and served again and encouraged him to apply to the Board * as a physician, he provides care for many veterans in his community and they ask him why he is not a VA physician; he would like nothing more than to be a physician treating veterans at the VA * he feels his military service and expertise in pain management would be a great asset to Soldiers at the VA 4. The applicant provides several certificates from his period of active service, a self- authored letter, letters of endorsements and his Doctor of Osteopathic Medicine Certificate and Licensure. His achievements highlight both his accomplishments before and after his discharge from the military. 5. The letters of endorsement include: a. A memo from CW4 (retired) and his former patient who states: * after 38 years of military service in the U.S Army, he retired as a Military Personnel Officer who was required to be a competent judge of character * he has known the applicant for more than 9 years and personally witnessed his devotion to his medical practice, and his quest for healing the sick; he displays an individual most worthy of praise * the applicant was awarded the Army Commendation Medal, while on active duty with the combat ready 101st Airborne Division (Air Assault); truly an indication of the highest form of dedication and character * lastly, what a travesty it would be, based on all the profound success that the applicant has accomplished since 1992, not to be awarded the discharge upgrade that he respectfully seeks, and it would appear the severity of the punishment handed down perhaps was not justified. However, to have a youthful indiscretion continue to be present on his record, also seems not to be justified * he highly recommends the applicant’s discharge be upgrade to honorable b. From his former teammate who was charged with same offenses and same results as him stated: * as part of the Pathfinder, they were the first in and the last out in the field, and because of the way the team operated anything left behind, it was practiced items were to be obtained by them and returned to their detachment first and then shared among the other detachments; the CO and First Sergeant were aware all teams did this due to always needing extra equipment * in Jan 1992, one of their team 3 leaders told them to recover the MREs that were dropped at the wrong location; they did not question the NCO’s orders, but on their way back to the detachment, they were stopped by MPs and accused of stealing the MREs * their team leader told him to take the MREs off post until the dust settled * he found out what they were doing in searching the field for left behind items and sharing with their unit was illegal * soon after their relationship with their team 3 leader changed * he was consulted by counsel to accept the discharge and was discharged in Aug 1992 * his dad assisted him in going to his Congressman’s Office and filing a DD Form 149 where the Board upgraded his discharge to Honorable and he served 20 years; retiring as a SFC * he believes applicant should have an upgrade like him and emphasizes the great he has done with his life despite what happened during his time in the Army, and he would go before the Board by his side as a character witness c. From his previous NCO supervisor since August 1991 who described the applicant as a high quality and outstanding soldier who was trustworthy and respected by the team. d. From his Assistant Team Leader while the applicant was in Team 3 who described the applicant as one who completed tasks 110% and a reliable asset to the team and good Soldier. 6. The applicant entered the Regular Army on 14 June 1990. His DD Form 214 shows he was assigned to HHC, 6/101st Aviation Battalion, Fort Campbell, KY. 7. The applicant’s record is void of DD Form 458 (Charge Sheet). Likewise, it is void of a separation packet. 8. The applicant was discharged on 21 August 1992. His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the Service, with an under other than honorable conditions characterization of service. He completed 2 years, 2 months, and 8 days of net active service. 9. The Board should consider the applicant's submissions and supporting evidence with his service records in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The Board considered his age at the time of misconduct, the severity of the chapter 10 for larceny, and his post-service accomplishments to render an upgrade to general discharge. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant :X :X :X Partial Grant : : : Formal Hearing Grant : : : Deny BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions 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 upgrading his discharge characterization to honorable. ___________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. ADMINISTRATIVE CORRECTION: N/A? REFERENCES: 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 Army Board for Correction of Military Records (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. 2. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20160015290 6