ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2020 DOCKET NUMBER: AR20160017325 APPLICANT REQUEST: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable 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: a. For months he worked with the inspector general (IG) and his local congressman because of the drug use at his unit and how he feared that the men were labeling him as a snitch because he did not use drugs. He was threatened that if there was ever a drug bust he would be thrown out of the second floor window. There was a drug bust and he feared for his life. He ended up being transferred to another battalion but it only ended up being located two buildings down from his original unit. b. Rumors started because of friendships that formed between Soldiers within his new and old units of assignment. He feared for his safety and his life. He went absent without leave (AWOL) but later turned himself in to Fort Dix, NJ for discharge. If he had never feared for his life, he would not have left the service and would have made a career of it. He was forced out of the service because he would not partake in drug use. c. He has tried in the past to upgrade his discharge but had let go of this option. Now that he is getting older, it is really bothering him, because he was forced out of the service so why should he be punished for it. Again, he is trying to upgrade the discharge. Since it has been so long, he has no records left. He is sure all the records, IG reports, and Congressional Inquiries his congressman sent, will be in his files. 3. On 3 February 1978, at the age of 17 years old, the applicant enlisted in the Regular Army for a period of 4 years. On 11 May 1978, the applicant completed his initial training and was assigned to his permanent change of station. 4. On 1 June 1978, he arrived at his organization. On 30 September 1978, 4 months after arriving, the applicant went AWOL. On 29 October 1978, he was dropped from the rolls and on 15 November 1978, he surrendered and was returned to military control. 5. On 17 November 1978, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 30 September 1978 and remaining absent until on or about 15 November 1978; AWOL for a total of 46 days. 6. The personnel control facility (PCF) interview sheet indicated the applicant stated there was a serious drug problem in his unit when he arrived so he requested a transfer to another unit but it was denied. He and a friend were suspected of being narcotics agents and his friend was attacked. He went AWOL at the same time his friend took leave. When the applicant returned he was transferred to another company but it did not help so he left again. The whole affair affected his attitude and he wanted to get out of the Army. 7. On 21 November 1978, provided a statement regarding the applicant’s AWOL and threats made on the applicant’s life. The statement was initialed at the top of the page, which reads: Cdr (Commander),. The SFC stated: a. The applicant had a series of congressional inquiries concerning assignment, transfer, and allegations on his life being threatened by fellow Soldiers. He was transferred by verbal order from Company B, 2nd Battalion, 63rd Armor to Company C, 4th Battalion, 63rd Armor, pending request for orders and proper clearance from the unit. The applicant departed AWOL during the process. The losing unit was credited with the AWOL. b. According to the applicant’s immediate commander, a series of investigations were conducted on the alleged threats on the applicant’s life to include being an informer. The investigations proved negative and the congressional elements were informed. The applicant refused to reveal the names of the person(s) who imposed the threats and claimed the applicant was an informer for the Criminal Investigation Division (CID). CID had no dealings with the applicant. 8. On 20 November 1978, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge in lieu of trial by court-martial and indicated he would not submit statements in his own behalf. 9. The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request directing the applicant be reduced to the lowest enlisted grade and he be issued a discharge under other than honorable conditions. 10. On 16 January 1979, he was discharged accordingly. His service was characterized as UOTHC. He completed 9 months and 29 days of total active service, with 46 days lost time. His DD Form 214 shows he was authorized Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 cal). 11. The applicant submitted an application to the Army Discharge Review Board (ADRB) to upgrade his discharge from UOTHC to an honorable discharge. On 30 May 1989, the ADRB determined that he was properly and equitably discharged and denied his application. 12. On 20 December 2019, the Army Review Boards Agency requested a redacted CID/Military Police Report regarding the applicant as evidence of the applicant’s assertions of being threatened by other Soldiers. On 9 January 2020, CID responded a search of the Army Criminal file indexes did not reveal any records pertaining to the applicant. 13. The applicant described how his life was threatened by Soldiers assigned to his unit because they believed he was a snitch, which caused him to fear for his life and go AWOL. a. His record shows he enlisted at the age of 17 years old, successfully completed training and went AWOL within 120 days of reporting to his first unit of assignment which resulted in him surrendering and court-martial charges preferred against him for 46 days of lost time; he voluntarily requested he be discharged in lieu of trial by court- martial. In the process of his separation his unit commander recommended approval indicating the applicant had no motivation would not respond to counseling and/or rehabilitation. He was 18 years old at the time he was discharged completing 9 months and 29 days of his 4-year contractual obligation. His record is void of counseling's or other documents that would indicate he has performance issues prior to going AWOL. b. Regarding his statement about Hazing and Bullying. At the time of his service, there were no explicit policies or procedures defining or prohibiting hazing or those like- behaviors. It wasn't until 2012, when all the Service Chiefs formally coordinated action to create a "Zero Tolerance" posture. 14. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. a. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge. According to the MCM, Article 86, UCMJ –– absence without leave for more than 30 days, included a dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. At the time of separation guidance was that commanders should consider the member's potential and entire record should be reviewed prior to taking action pursuant to this chapter and approve separations when it is determined that the offense(s) charged is serious to warrant elimination from the Service and the member has no rehabilitation potential. 15. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, the absence of CID confirmation of his statement and the reason for his separation. The Board considered his claim, but found insufficient evidence to support his statement regarding hazing. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements of letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not 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. 8/3/2020 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 NOTE(S): Not Applicable 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 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel, it states: a. An honorable discharge was a separation with honor and entitled 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. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. According to the MCM, Article 86, UCMJ –– absence without leave for more than 30 days, included a dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 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. 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. 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. 5. Military history accounts for and suggests that some of the most harrowing experiences for Soldiers took place in Basic Training. There is a long history of sanctioned abuse of hazing and bullying as early as the 1940's. Even as early as the 1950's when hazing during basic training was not regulated or even discouraged. Robust studies on hazing in the military are sparse and dated with the most recent study on hazing was published in 1992, and although it provides some valuable insights, a glaring lack of information still existed in 2012. a. In January 2012, all the Service Chiefs formally coordinated action to create a "Zero Tolerance" posture; to this end, the Fiscal Year (FY) 2013 National Defense Authorization Act (NDAA) required an initial report from each of the service secretaries' efforts to address hazing. (1) An executive summary published by Defense Equal Opportunity Management Institute (DEOMI), 'Executive Summary on Hazing in the Military," dated 7 February 2012, provides the Department of Defense (DoD) did not have a standard definition for hazing, it only includes hazing behaviors; all services have independent definitions of hazing and lack defining bullying. (2) Defense Manpower Data Center (DMDC) reported there was no database on hazing or bullying in the military and as of 2012 none of their Status of Force Survey addressed these constructs. However, both DMDC and DEOMI where currently conducting surveys which address bullying-like behaviors within the context of discrimination. b. In a study conducted by DEOMI, "Hazing: A Military Study," Technical Report No. 01-14, hazing was seen to serve three functions – socialization, cohesion-building, and weeding out those unfit or unwilling to serve. In 2014 a DOD survey revealed that male hazing was the most common type of sexual assault. Hazing and bullying involves not just sexual assault, but other forms of violence as well. c. NDAA FY 2015 required the GAO to prepare a report on the policies to prevent hazing and systems initiated to track incidents of hazing in each of the Armed Forces. (1) On 23 December 2015, DOD issued "Hazing and Bullying Prevention Response in the Armed Forces," policy memorandum, it provided guidance on enterprise-wide guidance on prevention training and education, as well as requirements for tracking and reporting incidents of hazing. Incidents of hazing that may involve allegations of sexual assault, sexual harassment, or discrimination must be address according laws, regulations and policy and prohibited hazing in all circumstances and environments, including "off-duty or in "unofficial" unit functions with a nexus to military service… The prohibition of hazing extends to such misconduct committed via electronic communications." It directed that the Military Departments and the National Guard Bureau promulgate appropriate punitive regulations accordingly and provides updated definitions of hazing and bullying and examples of activities likely to be considered problematic; and mandates standardized incident tracking and reporting that will inform preventative training and education. (2) In February 2015, the GAO submitted a report to Congress outlining seven recommendations DoD needed to take to increase oversight on hazing incidents involving service members. The Department concurred with all seven recommendation to support the Hazing and Prevention efforts already in progress which included publishing an Anti-Harassment directive during FY 2018 updating the requirements outline in the aforementioned policy memorandum dated 23 December 2015. d. A DoD Summary Report on Hazing Prevention and Response in the Armed Forces for reporting period 23 December 2015 – 25 April 2016 shows the following accomplishments and best practices were reported for FY 2016 included establishment of the DoD Hazing Bullying Workgroup was senior subject matter experts from DoD Office of the General Counsel, DEOMI, Military Departments, Office of the Secretary of Defense and provided a forum to synchronize efforts in: * developing effective prevention and response policies; * using findings from studies to redefine hazing, processes in place, and develop a comprehensive database; * producing a key deliverable, "Commander's Guide to Hazing Prevention," used a tool to help commander's identify and respond to hazing incidents at the unit level; and * updating the 1997 Secretary of Defense Policy Memorandum on Hazing e. As part of the result from the 2016 GAO report, FY 2017 NDAA legislated "Improved Depart of Defense prevention and Response Hazing in the Armed Forces, which requires the establishment of a database on hazing incidents, improved training on hazing, and annual reports to Congress. //NOTHING FOLLOWS//