ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20170005500 APPLICANT REQUESTS: * Reversal of all adverse actions against him during assignment at Fort Bliss, TX * Pay grade adjustment * Upgrade his general, under honorable condition discharge to honorable * Award of the fullest justice allowable within the authority of the Board * Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect changes APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 149 Addendum-A * DD Form 149 Addendum-B (Self Authored Statement) * Letter, Porter County, Indiana Veteran Service Officer, Mr. X., dated 11 January 2017 * Letter of Recommendation, Captain (CPT) X. (Former Commanding Officer), dated 4 February 1987 * Letter of Recommendation, CPT X.(Retired), dated 6 January 2017 * Letter of Recommendation, First Lieutenant (1LT) X., dated 13 February 1987 * Character Statement, Staff Sergeant (SSG) X., dated 10 November 1986 * Character Statement, SSG X, dated 12 November 1986 * Character Statement, CPT JX., dated (unknown) * DD Form 214 (Member Copy) 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 the “Be All You Can Be” commercials inspired him and influenced his decision to join the military. He was so confident he would make a career of the military that he graduated high school early and joined the U.S. Army. It was his plan to retire from the Army. His initial assignment was on the Demilitarized Zone in Korea. His first sergeant provided him every opportunity to be all he could be and live out his Army dream. He even had an opportunity to participate in the Special Forces Assessment and Selection however, he was not accepted due to a rib injury sustained in martial art training. He was placed on a return assignment to Fort Bliss, TX. His request to extend his tour in Korea was not favorably considered. a. Upon his reassignment to Fort Bliss and shortly after arrival at his new unit, a clique of noncommissioned officers (NCOs) began to target and harass the applicant. They were constantly on his case and in his face. The other officers and NCOs that he worked for were providing his praise while the clique of NCOs were finding fault in most everything he did. The clique of NCOs colluded, made false statements, and brought charges against him. Eventually, through targeting and dishonesty, the clique of NCOs were successful in having him discharged. Shortly before his discharge, he asked for and received several letters of recommendations from officers and NCOs for whom he worked. To his surprise, the commanding officer also wrote a letter of recommendation which included the following quote, “I believe his supervisors were picking on him.” He knew he was being targeted, harassed, and dishonestly setup for discharge and felt since the commander knew, he should have taken measures to prevent and/or stop it. b. The applicant made a commitment to the Army. If he had not suffered the injustice of being targeted, harassed and dishonestly setup for discharge, he would have continued his career in the Army. He would have excelled and retired. With his military pension and the Post 9/11 Government Issued (GI) Bill, he would have obtained a degree. His degree would have provided him more employment option. He is a husband and a father of twelve. The injustices of being targeted, harassed, and dishonestly discharged has had, and continues to affect consequences on him and his family. 3. The applicant provided several letters of recommendations and statements of character that consistently stated the applicant was a good Soldier, which performed his duties satisfactory with expediency, while displaying a good attitude. He displayed a lot of potential to be outstanding and given the opportunity, he could be an asset to any organization. His former commander supports the request to have his discharge upgraded to honorable. 4. The applicant service records shows: a. He enlisted in the Regular Army on 1 October 1984. b. He served in Korea from 26 January 1985 to 22 January 1986. c. He received several nonjudicial punishments (NJP) for various infractions. His infractions and punishments in part, consisted of: * 6 May 1986 – Failure to obey a lawful order; forfeiture of pay and suspended reduction in rank * 6 June 1986 – Dereliction in performance of duty; reduced to private/(E-2), forfeiture of $358.00 for one month (suspended 45 days) * 2 July 1986 – Vacation of suspension of punishment imposed on 6 June 1986 * 17 October 1986 – Failure to be at his place of duty; extra duty and restriction * 8 November 1986 – Disrespectful in language toward a NCO and disobeying a lawful order; reduction to private/(E-1) and forfeiture of $125.00 for one month d. On 2 December 1986, he received an approved DA Form 4126 (Bar to Reenlistment Certificate). e. On 24 November 1986, it was the opinion of medical authorities that the applicant had the mental capacity to understand and participate in the proceedings and met the retention requirements of Chapter 3, Army Regulation (AR) 40-501 (Medical Retention). f. On 16 December 1986, his immediate commander notified him of his intent to initiate separation action against him in accordance with AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12a, in effect at the time, for misconduct – minor disciplinary infractions. The commander indicated that his recommendation is based on patterns of misconduct – minor disciplinary infractions. The applicant showed a pattern of misconduct through Uniform Code of Military Justice action and counseling statements. g. On 16 December 1986, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and did not submit statements on his own behalf. He acknowledged: * he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading however, he realize that consideration by either board does not automatically imply upgrading * he may withdraw any waiver of rights up until final action by the separation authority h. Subsequent to the applicant’s acknowledgment, on 5 January 1987, the immediate commander initiated separation action against him for repetitive minor disciplinary infractions and a pattern of misconduct. The chain of command recommended approval. i. On 26 January 1987, consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14-12a, by reason of misconduct – minor disciplinary infractions. He ordered his service be characterized as general, under honorable conditions and he be issued a General Discharge Certificate. j. On 13 February 1987, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14-12a of AR 635-200 as a private/E-1 and was issued a General Discharge Certificate. He completed 2 years, 4 months, and 13 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M16) * Expert Marksmanship Qualification Badge with Grenade Bar * Overseas Ribbon k. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations. 4. By regulation, action will be taken to separate a soldier for a pattern of misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 14-3a. 5. Applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR. There must be must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR. 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, the Board determined relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board made the following findings regarding the following portions of the request: * Reversal of all adverse actions against him during assignment at Fort Bliss, TX – Board members agreed that the Army has an interest in maintaining the integrity of its records. The applicant’s separation packet is his historical record and commanders should have the authority to decide appropriate actions as long as the appropriate due process is followed. The Board concluded that all due process was followed in the applicant’s administrative separation. Therefore, no * Pay grade adjustment – the Board noted that he was punished by NJP that resulted in his reduction to E-1. He had the right to appeal but he did not * Upgrade his general, under honorable condition discharge to honorable – In reaching its determination, the Board did consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance (FY18 DOD Guidance) * Correction of his DD Form 214 to reflect changes – As a result of the above findings, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s military service record 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, provides for 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 soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any characterization would be clearly in appropriate. b. Paragraph 3-7b (General Discharge) 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. Paragraph 3-7 of this regulation provides procedures for separating personnel for a pattern of misconduct. 3. Army Regulation 27-10, (Military Justice), in effect at the time prescribes the policies and procedures pertaining to the administration of military justice. a. Paragraph 3-6 (Filing Determination) states a commander’s decision on whether to file a record of nonjudicial punishment (NJP) on the performance section of a Soldier’s official military personnel file (OMPF) is as important as the decision on whether to impose NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. b. Paragraph 3-19b(6)(a) (Promotion Authority) states the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of Article 15(b) if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade. c. Paragraph 3-19(6)(b) (Date of Rank) states when a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced it the date the punishment of reduction was imposed. d. Paragraph 3-19b(6)(d) (Void Reduction) states any portion of a reduction under Article 15 beyond the imposing commander's authority to reduce is void and must be set aside. Where a commander reduces a Soldier below a grade to which the commander is authorized to reduce, and if the circumstances of the case indicate the commander was authorized and intended to reduce the Soldier at least one grade, a one-grade reduction may be approved. Also, if a reduction is to a specialist grade when reduction should have been to a lower NCO grade (or vice versa), administrative action will be taken to place the offender in the proper rank for the military occupational specialty held in the reduced pay grade. All rights, privileges, and property, including pay and allowances, of which a Soldier was deprived by a reduction that has been set aside must be restored. e. Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) contains guidance for transfer or removal of records of NJP from the OMPF. It states that applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further indicates the performance portion of the OMPF will, on approval of the member’s application, be processed in accordance with the instructions of the ABCMR. 4. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. a. Paragraph 3-6 (Authority for Filing or Removing Documents in the AMHRR Folders) provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) shows a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 4b of the DA Form 2627). 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 (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) AR20170005500 6 1