1. ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20160019060 APPLICANT REQUESTS: upgrade of his 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) * court ordered guardianship of the applicant * medical records * DA form 4856 (General Counseling Form) for the periods of 5 May 1988 to 26 August 1988 * letters of recommendation for retention * Personnel Qualification 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 that he was punished numerous times for missing early morning formations and was eventually given a general under honorable conditions discharge for these minor offenses. He feels that the discharge was an injustice as his records shows that he was receiving medical treatment for insomnia. Other than these issues that were caused by the insomnia, he was a great Soldier. He received numerous letters of recommendations from fellow Soldiers who worked by his side on a daily basis. He feels that as a young Soldier he should have been provided more assistance and support as he was suffering from the effects of insomnia. He was proactive by seeking medical attention for his condition because he knew it was a hindrance to his performance. He even purchased a louder alarm clock to help him in the mornings. He believes that his situation warranted an honorable discharge due to disability instead of a general under honorable conditions discharge. 3. The applicant provides: a. Standard Form (SF) 600 (Symptoms, Diagnosis, Treatment, Treating Organization) dated 31 August 1988, that shows the applicant sought out medical assistance for sleep problems. b. Department of the Army (DA) Form 4856 (General Counseling Form) for the period of 6 May 1988 to 26 August 1988 for various corrective actions. c. Several letters of recommendation for retention in the service that was provided during the separation process. These letters state that the applicant was a good Soldier and mechanic and that he was an asset to the U.S. Army and his country. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 17 June 1987. b. On 26 July 1988, the applicant’s unit commander recommended that he be issued a DA Form 4126-R (Bar to Reenlistment Certificate) for: * Article 15 for failure to make formation * Numerous counseling for being absent from formation c. On 15 August 1988, the brigade commander approved the bar to reenlistment. d. On 19 August 1988, the applicant acknowledged the bar to reenlistment and chose not to appeal. e. On 19 August 1988, the applicant’s unit commander vacated the suspension of the reduction to grade private (PVT)/E-1 from a previous article 15. The vacation was based on failure to go to his appointed place of duty at the prescribed time and place and missed movement with his unit through neglect. The complete facts and circumstances surrounding the original Article 15 are unavailable for the Board to review. f. On 26 August 1988, the applicant’s unit commander notified him that separation action was being taken on him under provisions of paragraph 14-12b (A Pattern of Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for numerous failure to repairs and inability to adjust to military lifestyle. g. After consultation with legal counsel on 26 August 1988, the applicant acknowledged: * he may receive an honorable or general under honorable conditions discharge * he submitted statements in his own behalf * he may expect to encounter substantial prejudice in civilian life if he receives a general under honorable conditions discharge * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he understood the act of consideration by either board does not imply that the discharge will be upgraded * he understood that he can withdraw his waiver and request that a board of officer hear his case up until the date of separation * he may not apply for enlistment in the U.S. Army for a period of 2 years after discharge h. DA Form 2627-1 (Summarized Record of Proceeding under Article 15, Uniform Code of Military Justice (UCMJ)), the applicant accepted nonjudicial punishment on 31 August 1988 for failure to go at the time prescribed to his appointed place of duty. i. DA Form 3822-R (Report of Mental Status Evaluation) dated 7 September 1988, states that the applicant: * had the mental capacity to understand and participant in the proceedings * was mentally responsible * met retention requirements on chapter 3 (Medical Fitness Standards of Retention and Separation, Including Retirement), AR 40-501 (Medical Services – Standards of Medical fitness * no evidence of psychopathology * was cleared for administrative action deemed appropriate by the command j. The applicant’s unit commander initiated separation proceedings under the provisions of chapter 14, AR 635-200 due to his numerous failure to repairs and inability to adjust to military lifestyle. The commander did not recommend a characterization of service and the document was not dated. k. On 19 September 1988, the separation authority approved the applicant be separated from the U.S. Army and received a general under honorable conditions discharge. l. 20 September 1988, the applicant did not request a physical. m. He was discharged for active duty on 29 September 1988 under the provisions of chapter 14, AR 635-200 with a general under honorable characterization of service. His DD Form 214 shows that he complete 1 year, 3 months and 11 days of active service. n. There is no evidence in the applicant’s records that indicate that he was issued a permanent medical profile prior to separation. o. There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within it 15-year statute. 5. In the processing of this case, a medical advisor opinion, dated 16 April 2019, was received from the Army Review Boards Agency Medical Advisor. The advisory official stated that the applicant met medical retention standards in accordance with chapter 3, AR 40-501 and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. The applicant’s medical conditions were duly considered during the separation process. A review of available documentation found no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral condition(s) for the offense(s), which led to his separation from the Army. 6. The applicant was sent a copy of the medical advisory and requested that he submit any comments, letter dated 14 April 2019, but he did not respond. 7. By regulation 635-200 (Personnel Separation – Enlisted Separations), states Soldiers 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. 8. 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, medical concerns and the medical advisory opinion 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 numerous failure to repairs and inability to adjust to military lifestyle, 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. 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 Soldiers 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. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB). 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of the Military Department. 5. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019060 5 1