ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 December 2019 DOCKET NUMBER: AR20160016651 APPLICANT REQUESTS: reinstatement of his rank/grade from private first class (PFC)/E-3 to sergeant (SGT)/E-5. 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 (ABCMR) 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 believes the record is unjust. He was written up for being under the influence of alcohol. This was an injustice for two reasons: First, he was accused but he was never given a breathalyzer, and second, Captain (CPT) X__ discriminated against him from records that followed him from Fort Rucker, AL, which was also hearsay. He was not formally given a Breathalyzer test. An Army colonel spoke on his behalf to CPT X__, and from that point on CPT X__ made his military life a living hell, until he wrote the Article 13 (i.e., Article 15), against him and said he was drunk on duty, which never happen and was not proven. In summary, he was wrongly accused and CPT X__ used his authority to kick him out of the military. Everything was staged. He would appreciate the time and effort to clear his name as being intoxicated on duty, which did not happen the way he was accused. CPT X__ took advantage of his authority over him, as a private and new to the Army and not knowing his rights as a Soldier and not knowing one's rights can really hurt anyone many situation. He just did not know his rights. CPT X__ never mentioned that he (the applicant) was raped in service while he was at Fort Rucker. The sergeants in charge at Fort Rucker never mentioned it in his file either, and they never mentioned how they had him locked away on campus that is how the rape occurred in the first place; he was isolated from the rest of the Soldiers 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 8 March 1989. He was initially assigned to Fort Rucker on or about 7 July 1989. He departed Fort Rucker enroute to Fort Hood, TX on 25 September 1989. b. He was assigned to Headquarters and Headquarters Troop, 6th Squadron, 6th Cavalry. He was promoted to private first class (PFC)/E-3 on 8 March 1990. There is no record he was promoted higher than E-3 during his active duty service. c. On 11 June 1990, the applicant's company commander notified him of his intent to consider whether he should be punished under Article 15, Uniform Code of Military Justice (UCMJ), for misconduct. After consulting with counsel, the applicant declined trial by a court-martial, requested an open hearing, and elected to present matters in defense, extenuation and/or mitigation. d. On 13 June 1990, at an open hearing, he received non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for: * dereliction in the performance of his duties in that he negligently failed to report to squadron duty * twice failing to go at the time prescribed to his appointed place of duty (Army Drug and Alcohol Prevention Control Program (ADAPCP)) e. His punishment consisted of a reduction to private (PVT)/E-2 (suspended for 90 days) and 14 days of extra duty. He was advised of his right to appeal but he elected not to appeal. f. On 6 July 1990, the suspension of the punishment of reduction to E-2 imposed on 13 June 1990 was vacated and ordered executed after the applicant had been found drunk on duty on 3 July 1990. He was reduced to E-2. g. On 27 July 1990, he was declared an alcohol rehabilitation failure after he had failed to keep ADAPCP evaluation appointments on 10, 17, and 23 July 1990. h. On 23 August 1990, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance (failure to meet duty requirements, unsatisfactory duty performance, not being at his appointed place of duty, and ADAPCP failure). i. The applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He indicated he understood he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. j. Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with chapter 13 of AR 635-200 by reason of unsatisfactory performance. k. On 5 September 1990, the separation authority approved the administrative separation action and ordered the applicant discharged under the provisions of chapter 13 of AR 635-200, with an under honorable conditions (general) characterization of service. Accordingly, the applicant was discharged on 14 September 1990. l. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 13 of AR 635-200 by reason of "Unsatisfactory Performance" with a general characterization of service. This form further shows he completed 1 years, 6 months, and 7 days of active duty service. It also shows in: * Block 4a (Grade, Rate or Rank) PV2 * Block 4b (Pay Grade) E-2 * Block 12h (Effective Date of Pay Grade) 90-07-06 m. On 24 June 2002, the Army Discharge Review Board reviewed his discharge and found it proper and equitable. The ADRB, however, voted to upgrade his character of service to fully honorable. n. his DD Form 214 was voided and he was issued a new DD Form 214 reflecting similar entries to the voided one but with a character of service as honorable. 4. The Army Discharge Review Boards Agency (ARBA) medical advisor reviewed his case for medical condition(s) not considered during the separation physical process. The medical advisor rendered an advisory opinion on 18 November 2019 stating the applicant's administrative separation was due to failure to successfully complete the Army’s alcohol treatment program. His designation as a rehabilitation failure by the ADAPCP provider was for missing multiple appointments and attending one appointment while intoxicated. His behavioral health conditions are not mitigating factors for the misconduct that led to his discharge. However, the board should consider his MST in reviewing his request to change his discharge reason. With respect to his request to “reinstate my promotable rank…to sergeant”, his records show his highest rank achieved was PFC. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to provide a rebuttal. He did not respond. 6. By regulation (AR 635-200), chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander’s judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 7. By regulation (AR 635-5), the DD Form 214 reflects the active duty rank and grade held by the Soldier at the time of separation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the applicant’s record showing he was reduced in rank as a result of nonjudicial punishment (Article 15), the Board found there to be no error or injustice which would warrant changing the rank as reflected on the applicant’s DD Form 214. In making this decision, the Board did consider the medical advisor finding no mitigating factors to the misconduct. Additionally, the Board considered changing the narrative reason for separation, but found that the offenses resulting in the separation were accurately depicted by the narrative reason of “unsatisfactory performance” and therefore, the Board found insufficient evidence to provide any relief. 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 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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander’s judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. Paragraph 3-7a provides that 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. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160016651 5 1