ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20170002144 APPLICANT REQUESTS: * an upgrade of his general, under honorable conditions discharge to an honorable discharge * correction of his narrative reason for separation from “Misconduct-Minor Disciplinary Infractions” to “N/A” 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) * Army Discharge Review Board (ADRB) acknowledgement of receipt * Self-Authored Letter to his Congressional Representative, dated 1 May 1994 * Five Letters from his Congressional Representative to Applicant, dated 6 May 1994 * Two Letters from Congressman Representative to Colonel X__ * Business Card * Three Letters from his Congressional Coordinator * Chain of Command Document 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: a. He began his career with a purpose of being the best Soldier he could be. He comes from a family of the Army and it is in his blood to obey authority, leadership qualities, military bearing, and to successfully complete the mission. His military career took a turn for the worse while stationed at Fort Sill, OK. He arrived to his new unit as a newly promoted specialist. They were considered to be promotable to corporal within this type of unit. To have opportunities and others like it stripped from him were unjust. b. He started to experience discrimination and/or prejudice from the entire chain of command because he expressed to his platoon sergeant the treatment he was receiving. He talked to an Equal Opportunity Representative (EOR) and asked for input. He wanted to change anything the company perceived about him causing undue hardship or integrating fully into the unit and meeting the expectations of the command. The EOR alerted the commander and first sergeant there was alleged evidence of discrimination against him. This issued needed to be resolved expeditiously prior to an Inspector General inspection. c. A specialist-5, who displayed conduct unbecoming of a noncommissioned officer, recommended nonjudicial punishment (NJP) against him and was requesting his separation from the military. He had only been in the unit for 6 months or less and there was not sufficient evidence to present a pattern of disciplinary behavior. The battalion commander and command sergeant major asked the company commander in front of him if he could be rehabilitated and he stated “yes”. NJP was followed through with and he was chaptered out of the military. d. He tried to reenter the military but was told by the recruiters that the code on his DD Form 214 prevented it. He solicited help from his Congressman. The Army informed him that he could not reenter because he was not a high school graduate even though his enlistment records states that he is. He felt he was railroaded out of a successful Army career because no one was willing to provide assistance. 3. The applicant provides: a. An acknowledgement of receipt from the ADRB, dated 7 April 1993, where he submitted an application for a review of his discharge. b. A self-authored letter to his Congressional Representative, dated 1 May 1994, requesting assistance to reenlist in the U.S. Army Reserve or National Guard or to assist him in upgrading his discharge. His Congressional Representative replied back to the applicant on 6 May 1994 with a copy of the letter that he sent to the Department of the Army on his behalf. c. A self-authored letter which discusses racism that he experienced in the Army. d. A letter from the Office of the Chief of Legislative Liaison, dated 9 May 1994 which states that an inquiry had been initiated on the behalf of the applicant. On 17 May 1994, the Congressional Coordinator, sent a reply to his Congressman which stated that the ADRB had received the applicant’s application. In addition the Army was not accepting applicants for enlistments who are non-high school graduates. On 24 May 1994, his Congressman forwarded this information to the applicant. e. On 8 June 1994, his Congressman sent a letter to the applicant with a copy of the letter that he sent to the Department of the Army on his behalf regarding his status as a high school graduate. f. On 14 July 1994, the Office of the Chief of Legislative Liaison replied to his Congressman and cited an administrative error made by the Army Recruiting Command regarding his status as a high school graduate. She further states that the Army was not accepting applicants for enlistment who were last separated from the Army for misconduct and disciplinary reasons. His Congressman forwarded this information to the applicant on 27 July 1994. g. A document summarizing his chain of command from 1981-1989. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 July 1982. b. He served in Germany from 7 November 1982 to 6 May 1984. c. He accepted nonjudicial punishment on 26 July 1984 for failing to obey a lawful order and being absent without leave (AWOL) from 23 July 1984 to 24 July 1984. His punishment included a reduction to private first class/E-3 and 7 days correctional custody. On 17 August 1984, that portion of his punishment that included correctional custody was set aside. d. He accepted nonjudicial punishment on 3 August 1984 for being AWOL from 26 July 1984 to 30 July 1984. His punishment included a reduction to private/E-1. e. On 4 September 1984, his immediate commander notified the applicant of his intent to separate him under the provisions of chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for minor disciplinary infractions. He acknowledged receipt of the letter of notification on 4 September 1984. f. On 5 September 1984, after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may apply to the ADRB or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge g. The chain of command recommended separation with a general discharge. The separation authority’s approval memorandum is unavailable for the Board to review. However, an order was issued directing his discharge. h. He was discharged from active duty on 2 October 1984 under the provisions of Chapter 14, AR 635-200, paragraph 14-12a for misconduct-minor disciplinary infractions with an under honorable conditions (General) characterization of service. His DD Form 214 shows he completed 2 years, 1 month, and 26 days of active service with lost time from 26 July 1984 to 29 July 1984 and from 3 August 1984 to 13 August 1984. It also shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar i. On 30 August 1995, he submitted a request for a discharge upgrade and the ADRB denied his application. 5. By regulation, misconduct includes minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. An under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 6. 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, to include the DoD guidance liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Although the applicant provide some possible mitigating evidence for the misconduct in his self-authored statement, there was no corroborating evidence of those statements. Additionally, the Board found that based upon the pattern of misconduct and a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge. 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 Separations – Enlisted Personnel), in effect at the time, sets for the basic authority for the separation of enlisted personnel. a. Paragraph 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. b. Chapter 14-12a (Minor Disciplinary Infractions) is a pattern of misconduct consisting solely of minor military disciplinary infractions. 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 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. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170002144 5 1