IN THE CASE OF:  

		BOARD DATE:  19 May 2020

		DOCKET NUMBER:  AR20160019708


APPLICANT REQUESTS:  an upgrade to his general under honorable conditions 
discharge and a change of narrative reason to administrative.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	(3)  Permanent Change of Station (PCS) related documents

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the 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, in effect:

   a.	He requested his records from the National Personnel Records Center in 1993 
and again in 2000, prior to submitting a request to the Army Discharge Review Board 
(ADRB).  He received a letter that states his records could not be located; however, 
they would send them as soon as they were located.  As of the application date, he has 
not received his personnel records.  The Veterans Affairs (VA) informed him in 1992 
that his STRs were not found.  

   b.	He finally received his personnel records, incomplete, from St Louis.  Based on 
his review of the ADRB's decision in 2001, they had some records that he never 
received.  Therefore, he should have access to the information used for the appeal.  He 
is requesting an upgrade to his ADRB case (AR2001063717) because they could not 
have reviewed his entire record, as he did not receive his record in its entirety.  

   c.	The ADRB decision should be based on the totality of his service.  Critical 
elements of his service records such as his personnel files, his medical records, and his 
profiles, are a big part of his case.  If the ADRB has information that he requested, but 
does not have, there is impropriety in the process and he should automatically be 
upgraded. 

   d.	It is ironic that the derogatory Articles 15 are in the file, but the individual training, 
positive counseling statements, promotion lists, fire direction detail, unit police detail, 
and letters of recommendation are missing.  His Army Achievement Medal (AAM) for 
Hanau Unit Police was probably lost, as it is not reflected on his DD Form 214 
(Certificate of Release or Discharge from Active Duty).  

   e.	He has no counseling statements, which is important because they used the 
alleged counseling statements to fulfill the rehabilitation requirement.  Rehabilitation 
can't be impractical if it was not attempted.  Did the ADRB actually see the counseling 
statements and were those nine counseling statements for failure to uphold appropriate 
standards and conduct?  He was counseled twice in 18 months.

   f.	Falsification was the norm for his former unit, located in Hanau, Germany.  He 
was given a stack of undated forms to sign, as well as the rest of his section, for PCS 
purposes.  His former noncommissioned officer (NCO) told him that he was a marked 
man for filing an Army Inspector General (IG) complaint on his first sergeant (1SG) for 
constantly violating profiles.  

   g.	He is also service connected for an incident involving a round explosion during a 
field training exercise which the 1SG and NCO failed to allow him and others to go on 
sick call because the hospital was 100k away.  Now he tinnitus because he was 
afforded medical care.

   h.	He was charged with failing to go to his place of duty, which was a run to the 
gym.  His ankle was hurting, so he could not make it.  There is no other way to put it, 
the charge was a lie.  After the 1SG was notified of his IG complaint, his flight to Fort Sill 
on 9 March 1992 was cancelled.  This is was obvious retaliation because the added 
charges to article 15 happened months apart.  

   i.	The 1SG’s character was questionable and his chapter was based on a lie.  His 
chapter was initiated on the Friday prior to his scheduled to PCS the following Monday.  
(The applicant notes a situation of another Soldier, which he believes is comparable to 
his own, and the difference in actions of the 1SG.  He also notes his battle buddy’s 
situation, alleging punishment was inequitable based on race.)  He has no problem with 
his battle buddy; his problem is with the 1SG’s retaliation and inequitable punishment. 

   j.	He did not receive accurate pertinent information, as his case was hard to with 
the ranking officers committing fraud.  This type of behavior brings discredit to the Army.  
Alleging that punishment is not imposed on NCOS and Officers.  (It is important to note, 
the applicant alleges a multitude of incidents involving his leadership and their abuse of 
power.  Please refer to PDF pages 5 and 6 of 24)

3.  The applicant provides three PCS-related documents to show proof he was 
scheduled to PCS.  The documents are as follows:

   a.	A memorandum for the Personnel Service Center Portcall Section, which states 
his availability of 20 February 1992 as determined by the battalion commander.  

   b.	An Outprocessing Sheet, which indicates his finance appointment was scheduled 
for 2 March 1992 and that he was entitled to advance travel. 

   c.	A computer generated finance voucher, which reflects his advance was entered, 
the voucher processed, and the amount due to him.  

4.  A review of the applicant’s service records show:

	a.  He enlisted in the Regular Army on 18 September 1990.
  
	b.  The complete facts and circumstances surrounding his separation are not 
available for review.  His DD Form 214 reflects he was discharged on 26 May 1992, 
under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – 
Enlisted Personnel), paragraph 14-12b, misconduct, with a characterization of service of 
general under honorable conditions.  He completed 1 year, 8 months, and 9 days of net 
active service this period.

5.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade 
of his discharge on 7 December 2001.  The ADRB determined the discharge was both 
proper and equitable and voted to deny relief.  However, based on the regulations in 
effect at the time of discharge, the ADRB voted to change the narrative reason to 
misconduct.

6.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant's records in iPERMS, the Armed Forces Health 
Longitudinal Technology Application (AHLTA), and the VA's Joint Legacy Viewer (JLV) 
and made the following findings and recommendations:  No records were found in 
AHLTA or iPERMS.  No service treatment records or profile records were available for 
review.  Although JLV search shows the applicant is service connected at 40 percent, 
he does not have a behavioral health diagnosis.  In accordance with the 3 Sep 2014 
Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying 
Guidance, there is no documentation to support a behavioral health diagnosis at the 
time of his discharge and thus no diagnosis to consider with respect to mitigation of 
misconduct.

7.  AR 635-200 states, action will be taken to separate a member for misconduct such 
as commission of a serious offense.  A discharge under other than honorable conditions 
is normally appropriate for a Soldier discharged under this chapter.

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 reviewing the application and all supporting documents, the Board found that relief 
was not warranted.  The Board carefully considered the applicants request, supporting 
documents, evidence in the records, a medical advisory opinion and published DoD 
guidance for liberal consideration of discharge upgrade requests.  The Board 
considered the applicant's statement, his record of service, the frequency and nature of 
his misconduct, and the reason for his separation.  The Board considered the medical 
records and conclusions of the advising official.  The Board concurred with the medical 
advisory opinion finding insufficient evidence of in-service mitigating factors to 
overcome the misconduct.  The applicant provided no evidence of behavioral health 
diagnosis, post-service achievements, or letters of reference in support of a clemency 
determination.  Based on a preponderance of evidence, the Board determined that the 
character of service and the narrative reason or separation the applicant received upon 
separation was not in error or unjust.



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 (Personnel Separations – Enlisted Personnel), sets forth the 
basic authority for the separation of enlisted personnel.  

   a.	Paragraph 3-7a states 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.	Paragraph 3-7b states 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.	Chapter 14, of the version in effect at the time, established policy and prescribed 
procedures for separating members for misconduct.  Specific categories included minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and 
convictions by civil authorities.  It provided that action would be taken to separate a 
member for misconduct when it was clearly established that rehabilitation was 
impracticable or was unlikely to succeed.  A discharge under other than honorable 
conditions was normally appropriate for a Soldier discharged under this chapter.  
However, the separation authority could direct an honorable discharge if merited by the 
Soldier's overall record.

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.  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 based on 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.  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.


//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20160019708


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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