IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20170011567 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20170011567 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his other than honorable conditions discharge to an honorable discharge or a general under honorable conditions discharge. 2. The applicant states, in effect, a. He requests his honorable discharge from 18 July 1974 to 19 July 1977 be recognized as truthful as written on his DD Form 214 (Report of Separation from Active Duty) as honorable. He also requests his discharge received on 11 July 1978, after his immediate reenlistment, be revised from under other than honorable conditions and reinstated to an honorable discharge or at the least a general discharge to allow him his due disability benefits from military related injuries (as proven in his military records from Womack Army Hospital). b. He served his first three-year military contract agreement to defend his nation and its constitution against all enemies, foreign and domestic, and to uphold the standards of duty as indicated in his DD Form 214 for the period ending 21 March 1977. He was not derelict of his duties. He received a Good Conduct Medal, Letter of Commendation, and an Honorable Discharge. He also received a reenlistment code (RE-1). Within 8 months of his immediate reenlistment, he was reduced from E-4 to E-1 and received a reenlistment code (RE-3). He committed no crime or offense. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * DD Form 214 for period ending 21 March 1977 * DD Form 214 for period ending 11 July 1978 * Letter from Applicant to Senator C_ M_, dated 11 July 2017 * Senator C_ M_ Privacy Act Release Form * Letter from Senator C_ M_ to Congressional Inquiry Division, dated 20 July 2017 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 4 (Enlistment Contract-Armed Forces of the United States) * DD Form 4 for Immediate Reenlistment * Multiple DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)) * Separation Packet * DA Form 4126-R (Bar to Reenlistment Certificate) * DA Form 2496-1 (Disposition Form), Review of Bar to Reenlistment * Orders 130-88, dated 10 July 1978 * Orders 132-18, dated 10 July 1978 * DA Form 2 (Personnel Qualification Record-Part I) * DA Form 2-1 (Personnel Qualification Record-Part II) * DD Form 214 for period ending 11 July 1978 * Army Discharge Review Board, ADRB Docket Number AD8113115, dated 1 April 1983 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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 between 1966 and March 1978, set forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 3. Around mid-1978, AR 635-200 was revised. Chapter 14 established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or is unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation. a. Paragraph 1-13a provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate 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. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well the seriousness of the offense(s). b. Paragraph 1-13b provides a general discharge is a separation from the Army under honorable conditions. It is issued to a member when his military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-28 provides 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 under the provisions of section. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Disciplinary Review Boards (DRBs) and Boards of Correction of Military/Naval Records (BCM/NRs) 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; 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 or equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. DISCUSSION: 1. While the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 19 July 1974. He held military occupational specialty (MOS) 31M (Multi-Communications Equipment Operator). 3. He was honorably discharged on 21 March 1977 for immediate reenlistment. He was issued a DD Form 214 that credited him with 2 years, 8 months, and 3 days of active service. 4. He reenlisted on 22 March 1977. He was assigned to A Company, 82d Signal Battalion, 82nd Airborne Division, Fort Bragg, NC. He was promoted to specialist four (SP4)/E-4. 5. On 20 September 1977, he accepted Article 15, UCMJ for 3 incidents of being absent without leave (AWOL). His punishment consisted of reduction to private first class (PFC)/E-3 (suspended for 60 days) and extra duty for 14 days. His punishment of reduction to E-3 was vacated on 7 October 1977. 6. On 23 November 1977, he was barred from reenlistment for failing to obey a lawful order, failing to follow instructions, numerous incidents of failing to report to his appointed place of duty at the prescribed time, and numerous incidents of being AWOL. 7. On 10 February 1978, he accepted Article 15, UCMJ for going from his appointed place of duty, without authority and disobeying a lawful order from his superior noncommissioned officer. His punishment consisted of reduction to private two (PV2)/E-2 and forfeiture of pay, both suspended until 9 April 1978. On 2 March the punishments of reduction and forfeiture were vacated. 8. On 30 May 1978, he accepted Article 15, UCMJ for failure to go to his appointed place of duty and communicated a threat to a commissioned officer. His punishment consisted of reduction to private one (PV1)/E-1, forfeiture of pay, and correctional custody for 10 days. The applicant appealed the Article 15 and his appeal was denied. 9. On 15 June 1978, the immediate commander requested a waiver for a rehabilitative transfer. 10. On 19 June 1978, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with AR 635-200, chapter 13 for misconduct because of frequent incidents of a discreditable nature with civil or military authorities. The commander advised him that he had the right to: * present his case before a board of officers * submit statements in his own behalf * be represented by counsel * waive his rights in writing * consult with counsel prior to waiving his rights 11. On 20 June 1978, after consulting with legal counsel, the applicant acknowledged that he understood the effects of receiving an general under honorable conditions discharge and an under other than honorable conditions discharge. He indicated that he understood: * he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him * he understood as a result of issuance of a discharge under conditions other than honorable he may be deprived of all benefits as a Veteran under both Federal and State law * he waived consideration of his case by a board of officers and waived personal appearance before a board of officers * statements in his own behalf were not submitted 12. On 20 June 1978, the immediate commander requested the applicant be eliminated from the service under the provision of AR 635-200, chapter 13, for misconduct. He stated the applicant was not transferred into the present unit as a result of a rehabilitative transfer. In his belief, it would be a waste of time and resources as the applicant had been given ample opportunity to turn himself around and properly perform. The applicant had been transferred between platoons and sections, but had shown no improvements. 13. On 21 June 1978, his intermediate commander concurred with the immediate commander and recommended approval of the waiver of rehabilitative transfer and the discharge. 14. On 29 June 1978, the separation authority directed that the applicant be separated under the provisions of AR 635-200, paragraph 14-33b(1) with the issuance of a Under Other Than Honorable Discharge Certificate. He also directed that the applicant be reduced to the lowest enlisted grade of E-1. 15. On 11 July 1978, the applicant was discharged under the provisions of paragraph 14-33 of AR 635-200 with an under other than honorable conditions discharge. He completed 3 years, 11 months, and 23 days of active service. His DD Form 214 shows he was awarded or authorized: * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Army Good Conduct Medal * Parachutist Badge * National Defense Service Medal 16. On 1 April 1983, the ADRB denied the applicant's request to upgrade his discharge from an under other than honorable conditions discharge to an honorable discharge and determined he was properly and equitably discharged. 17. The applicant provides: a. Letter from Applicant to Senator C_ M_, dated 11 July 2017, which states in effect: (1) He was 17 years old when he enlisted in the Army from Kansas City, MO on 11 July 1974. He attended basic combat training in Fort Polk, LA, advanced individual training (AIT) at Fort Gordon, GA, and he graduated with MOS 31M (Multi-Channel Communications Equipment Operator). He obtained a secret clearance. He trained for Airborne Paratrooper School at Fort Benning, GA and graduated Airborne qualified (31M2P). He was assigned to Fort Bragg, NC in September 1974. (2) He served 2 years and 3 days of his contract of 3 years when asked to be separated with an "Honorable Discharge" because he qualified with an "Immediate Reenlistment promotion that accepts his first term as Equitable amount of years, months, and days" to be discharged and reenlist into a new term of agreement. He was 20 years of age when he received a Good Conduct Medal, Letter of Commendation, a DD Form 214, and Certificate of "Honorably Discharged" from the U.S Army, in 21 March 1977 (4-months prior to his actual ETS (expiration term of service). He was given a DD Form 214, Honorable Discharge, and the Good Conduct Medal, an excellent separation review on the anniversary of his enlistment date 11 July 1977 with a Letter of Commendation. (3) It wasn't until he was under the command of a 2nd Lieutenant (2LT) a graduate from Alabama (named LT B_) who expressed his lack of confidence in black Soldiers and disapproved of his religious beliefs, throughout the periods as his platoon leader from November 1977 to 11 June 1978. LT B_ constantly harassed and reprimanded him for failures to appear at a company picnic, and disobeying a lawful order for not returning to a 10-mile run, that he vomited at from being sick. The applicant had excused himself from continuing the run. (4) He underwent vicious and repeated reprimands over small and obscure reasons that LT B_ would come up with. He never committed a crime while in the military service, not even a military or civilian misdemeanor or felony, but he was sent to a local base Stockade (imprisonment) for 10 days. After he was released he was brought up before an Acting Base Commander, sitting in for General R_ R_, and was recommended for discharge. He was never told or it was never clear to him that he would be discharged with an "Under Other Than Honorable Conditions." What was explained to him was he was being discharged with a "General Discharge" (Unable to adapt to Military Life). (5) He was demoted from SP4/E-4 to PV1/E-1 in a matter of 5 months by the power of one man, a 2LT. He was 19 years old, being harassed for religious reasons, and in his perspective, subjected to racist sentiments, to belittle him to react to justify him as unable to adapt to military life. (6) He was given corrective counseling, at the directions of 2LT B_, for concocted reasons, such as failure to appear at a mandatory weekend Platoon Picnic, given an Article 15 for failure to obey a Direct Order per 2LT B_, for not reentering a 10-mile physical training run, in which he vigorously fell out of the ranks due to vomiting. (7) The Military claimed they informed him in an official letter, discovered by his Attorney's Motion for Discovery, that was mailed in March 1979 to a P.O Box Address in NC, a post-office-box he never obtained or possessed. The contents stated that he was disqualified to receive any Military Benefits or Disability. They mailed to a fictitious address. (8) He was given a military reenlistment code RE-4. This consequently rejected future claims for treatment or secure disability due to his permanent knee injuries (substantial loss of knee cartilage) caused by 50 parachute jumps recorded by Womack Army Hospital. (9) His attorney never received response letters of all the rejections that the applicant received from the Department of Veterans Affairs (VA), and the VA knew his attorney’s office represented him. The evidence his attorney presented to the VA, his office did not receive a response. They only sent the response to the applicant. Every Soldier knows the cruel, shrewd, possibility of the VA rejecting their claims, rights, or inalienable benefits, because it is a common practice within the VA to reject its own military Soldiers. Instead, the impression is the VA wants soldiers to either commit suicide or die in the long-awaited process of fighting for benefits. (10) For 30 years he has struggled with the VA's routine protocol to disenfranchise its own military Soldiers. He is tired and frustrated with a nation that permits its government agency to make chess games with the lives of young men who sacrificed their lives for this nation. (11) He wants his RE code reinstated to RE-1 -instead of the unjust RE-4, "Under Other Than Honorable Condition" Discharge he received fraudulently at the age of 21 years old. He wants back pay dating back to the fraudulently mailed addressed P.O Box of his first "Rejection Letter" dated March 1979, sent to a Post Office Box (which he never owned or possessed) in NC, rejecting any and all Veteran Benefits. Another one of the government’s trickery to prevent Veterans benefits. (12) He would like back pay because it should have been sent to his permanent place of residence in his military records to adequately and justly inform him of his discharge type and status, and rejections for benefits, for reasonable care of his health care choices. For this reason he would like back pay, including any and all interest due. (13) He would like to be categorized as 70 percent (%) disabled for disability, monthly payments, due to suffering uncorrected, chronic knee injuries, and pain and suffering caused by military required duties from 50 parachute jumps. The injury was well documented and recommended for corrective surgery, but denied him while in active duty status by his company commanders. He also had high blood pressure, diabetes, and a heart condition. b. Senator C_ M_ Privacy Act Release Form, which authorizes Senator C_ M_ to access any and all of the applicant’s records that relate to his problem. The applicant stated in the request to Senator C_ M_ * he needed assistance with the VA to obtain his disability * he was honorably discharged from the U.S. Army in 1977 * he received an Honorable Discharge Certificate * he immediately reenlisted * his new commander rejected his religious beliefs and ethnicity * his new commander constantly harassed and reprimanded him * the commander had the applicant discharged within 5 months * he was denied VA Benefits c. Letter from Senator C_ M_ to ARBA Congressional Inquiry Division, dated 20 July 2017, states the applicant would like his discharge of 1978 upgraded to an honorable discharge. 18. The available evidence shows: a. The applicant served two periods of active service and he received a separate DD Form 214 for each period. His first period extended from 19 July 1974 to 21 March 1977 and he received an honorable discharge. b. During his second period of active service, his commander initiated separation under the provisions of AR 635-200, chapter 13. At the time, chapter 13 was separation for unfitness or unsuitability. The commander also noted that discharge is recommended for misconduct because of the applicant's frequent incidents of a discreditable nature with civil or military authorities. The record contains multiple counseling statements, records of non-judicial punishment and a Bar to Reenlistment. c. The applicant was counseled by an attorney informing the applicant that the basis for his discharge was for misconduct. He was also counseled that he could receive a discharge under conditions other than honorable and as a result he may be ineligible for many or all benefits as a veteran under both Federal and State laws. The applicant indicated that he understood his rights and waived his right to a board of officers. d. During his separation processing, the regulation for separation for misconduct changed from chapter 13 to chapter 14. The separation authority directed separation under the provisions AR 635-200, paragraph 14-33b(1), for patterns of misconduct because of frequent incidents of discreditable nature with civil or military authorities and directed the applicant be issued and Under Other Than Honorable Discharge Certificate. The separation authority also directed that the applicant be reduced to PV1 (The applicant had been previously reduced to E-1 by Article 15 on 30 May 1978 and was already a PV1/E-1 at the time the separation was approved). 19. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170011567 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2