ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20170015614 APPLICANT REQUESTS: a reconsideration of the previous request for an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * An Appeal for Reconsideration Request * Administrative Board Excerpt FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150011068 on 10 November 2016. 2. The applicant states: a. That his immediate commander committed perjury, during his administrative separation board. He states the separation board denied him due process. He also declares that the separation board was inexperienced, biased, and/or too inept to recognize that a document was tampered evidence. He claims to have received no formal counseling, and was denied a rehabilitative transfer. He claims that he suffers from post-traumatic stress disorder (PTSD) due to the tortures, harassment and discrimination by his commander. He states that the ABCMR would be remiss if it continues to disregard the injustices he has presented. b. On 22 July 2019, he submitted additional evidence, which states that he would like to file a formal complaint against the ABCMR, and request an appeal for immediate consideration. He again reiterates that his commander committed perjury and an inept Board supported the commander. He asserts that out of 100 Soldiers only the commander testified that any misconduct occurred. He further states that the ABCMR failed to identify patterns of misconduct for which he was separated. He further states the Board conducted by ABCMR was negligent in its duties. 3. The applicant provides: a. An excerpt from his administrative board hearing, which states that the applicant’s duty performance was subpar, and he was relieved of duty from the supply section. Counseling statements describing his duty performance disappeared, when he worked in supply. It states that the applicant went to sick call 17 times, while complaining about an inadequate diet. He resisted anything done for him, but his medication worked for him and improved his condition considerably. He denied that he received a rehabilitative transfer. The applicant was living with another Soldier's wife, who stated they were to marry after his divorce. b. On 22 July 2019, he submitted additional evidence, which includes a recommendation for inefficiency, which states the commander felt the applicant’s overall performance and continued pattern of inefficiency were grounds for a reduction in rank. The commander also stated the applicant lacked potential. He includes four Enlisted Evaluation Report that shows he refused to sign two of them after receiving his ratings. He received mediocre to poor ratings on three out of the four evaluations, by different rating officials. He also received a high rating and two subsequent low ratings from the same senior rater. Also submitted is a Judgement of Divorce, dated 1 April 1985. 4. A review of the applicant’s service record shows: a. He enlisted on 21 October 1971, in the Regular Army (RA). He served in Germany from 21 February 1975 to 15 February 1978 and from 28 March 1985 to 30 July 1987. b. On 20 November 1986, a Bar to Reenlistment was initiated. He acknowledged receipt of notification of the Bar to Reenlistment. c. His DA Form 3947 (Medical Evaluation Board Proceedings), dated 9 January 1987, reflect that he was returned to duty with no limitations for lactose deficiency, which existed prior to service. d. On 12 January 1987, the gastroenterologist found no condition listed in Army Regulation (AR) 40-501 (Standards of Medical Fitness) which would lead to a medical separation. The applicant also stated at the time that his "health is good, he can now eat in the Mess Hall, he can out run younger Soldiers, maxed his PT (physical training) test and he performs martial exercises for strength and vigor. The medication given to him improved his condition considerably". e. On 22 January 1987, court marital charges were preferred against the applicant. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of theft of a set of keys for a dental clinic, and one specification of being absent from his place of duty. f. On 11 February 1987, he was evaluated by allergy services and failed to show reaction to egg protein. g. On 24 April 1987, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b (Patterns of Misconduct), and paragraph 14-12c (Commission of a Serious Offense) based on adultery, failure to pay just debts, misrepresenting date eligible to return overseas (DEROS), wrongfully soliciting a marriage of convenience to another Soldier, dereliction of duty, malingering, falsifying a document and theft of keys. h. He acknowledge receipt of notification for separation under the provisions of AR 635-200, Chapter 14, Paragraph 14-12b and 14-12c, and on 24 April 1987, he consulted with legal counsel and acknowledged: * he requested consideration of his case by an administrative separation board * he requested a personal appearance before an administrative separation board * he has been advised of the basis for the separation and its effects * he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge * he may be ineligible for may or all benefits as a veteran under both Federal and State Laws * he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge i. Subsequent to the applicant's acknowledgement, on 24 April 1987, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 14 of AR 635-200, separation for misconduct, patterns of misconduct and commission of a serious offense. j. On 24 April 1987, the chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under other than honorable conditions. k. On 29 May 1987, an administrative separation board convened and found the allegations of misconduct against him was supported by the preponderance of the evidence (except adultery, failure to pay debt, and misrepresentation of DEROS). The administrative separation board recommended that the applicant be discharged for a pattern of misconduct and commission of a serious offense with an under other than honorable conditions characterization of service. l. On 25 June 1987, the defense submitted a rebuttal to the administrative board’s recommendations. Counsel contended that the applicant’s command would stop at nothing to separate him from the service. m. On 13 July 1987, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation for patterns of misconduct and commission of a serious offense under the provisions of AR 635-200, chapter 14-12b and 14-12c and ordered his service characterized as under other than honorable conditions. He further directed that the applicant be reduced to the grade of private (E-1. n. On 7 August 1987, he 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 AR 635-200, paragraph 14-12b and 14-12c with an under other than honorable conditions characterization of service. He had 15 years, 9 months and 17 days of active service. He was assigned Separation Code JKQ (misconduct). o. On 29 January 1990, the Army discharge Review Board (ADRB) reviewed his discharge. The ADRB found that he was properly and equitably discharged, but determined that the reason and authority for his discharge be changed * from paragraph 14-12c, AR 635-200, Misconduct – Commission of a Serious Offense * to paragraph 14-12b, AR 635-200, Misconduct – A Pattern of Misconduct p. On 29 January 1990, a DD Form 215 (Correction to DD Form 214), was completed to reflect that: * item 25 (Separation Authority), read as Paragraph 14-12b, AR 635-200 * item 26 (Separation Code), read as JKM * item 28 (Narrative Reason for Separation), read as Misconduct – Patterns of Misconduct q. He applied to the ABCMR on 6 November 2001, and the Board determined there is no basis for a resubmission and it was returned without action. The records reveal that his original application was previously considered and denied by the Board on 14 July 1993. The records also reveal that the ADRB considered and denied his case on two occasions, 3 November 1989 and 10 December 1990. h. The applicant applied for a third time to the ABCMR and was informed that the most recent request for reconsideration was the final administrative action taken by the Secretary of the Army. As he was previously informed, there is no further action contemplated by the ABCMR since he is not eligible for further reconsideration by this Board. His request was returned without action. The ABCMR stated it will not consider any future requests for reconsideration of this matter. i. On 27 December 2016, a second DD Form 215, was completed to reflect that: * item 18 (Remarks), delete: immediate reenlistment this period 780824-810708 / 810709-840111 * item 18, add: continuous honorable active service from 780824 until 841011 * item 25, delete: AR 635-200, paragraph 14-12c * item 25, add: AR 635-200, paragraph 14-12b * item 26, delete: JKQ * item 26, add: JKM * item 28, delete: Misconduct – Commission of a Serious Offense * item 28, add: Patterns of Misconduct//Nothing Follows 5. In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 11 January 2018. They opined: a. The applicant’s misconduct leading to an early separation is not mitigated by a behavioral health and/or medical condition. He contends that PTSD affected his behavior, which contributed to his discharge. However, a careful review of the entire record reveals no evidence to support a diagnosis of PTSD or that the lack of adherence to a lactose tolerant diet contributed to trauma and/or maltreatment. b. At the time of the medical evaluation board, the applicant indicated improvement in his symptoms and there is no indication that his propensity to disregard rules and engage in maladaptive behaviors was related to a traumatic experience. Although he was diagnosed with PTSD post-service, this finding does not warrant a change to the initial findings. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. The applicant filed a congressional inquiry on 10 July 2019, seeking support in finding out why the ABCMR failed to address the false charges of adultery and the many acts of perjury committed by his commander. The constituent service representative reached out to the ABCMR on 12 July 2019, requesting addressed information. The ABCMR congressional liaison has not responded as of 20 July 2019. 8. By regulation, AR 15-185, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 9. By regulation (AR 635-8), Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” will have “Continuous Honorable Active Service for dates which a DD Form 214 was not issued, until the date before their current enlistment. 10. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 11. 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 on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the pattern of misconduct, which included misconduct of a serious, criminal nature, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 (reduction in grade), when a- soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. b. 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. c. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is 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 regulation. 2. AR 635-8 (Personnel Separations – Separation Processing and Documents), prescribes the transition processing function of the military personnel system. This new regulation provides principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents. 3. AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. AR 15-185, Army Board of Corrections of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 8. 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. ABCMR Record of Proceedings (cont) AR20170015614 8 1