ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20170015894 APPLICANT REQUESTS: * an upgrade of his general under honorable conditions discharge * correction of records to show his rank/grade as specialist (SPC)/E-4 instead of private first class (PFC)/E-3 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DA Form 2627 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 his pay needs to be corrected because the Department of Treasury took his permanent change of station, vacation, and taxes because they thought he had been demoted and owed back pay. He requests the taken funds to be returned to him. He served the Army almost 6 years, he was never demoted. He received a company level Article 15 and his rank was suspended it was automatically remitted December 1996. He had 3 years in Navy Junior Reserve Officer Training Corps (NJROTC) prior to serving in the Army. His father served 2 tours in Vietnam and came back with post-traumatic stress disorder (PTSD). His mom left him before he was a year old, he wanted to be an officer but after his service he felt he had been betrayed by the Army. He was not able to use the Department of Veterans Affairs (VA) Loan because of the chapter 13 discharge he received. He is just trying to make up for lost time, his wife is permanently disabled with a learning disability due to brain damage and has been diagnosed with diabetes. They have recently been given a chance to possibly own their own home. He needs to able to use his VA loan to purchase this home it would be a blessing for his family. 3. The applicant provides his DD Form 214. He also provides a DA Form 2627 which shows he accepted nonjudicial punishment (NJP) on 9 September 1996 for making an official false statement on 21 August 1996 and not returning to duty on 20 August 1996. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 6 June 1991 for a period of 3 years. He reenlisted in the RA on 21 October 1993 and on 24 May 1996. b. He served in Germany from 29 October 1991 to 3 June 1994. He was promoted to specialist/E-4 on 4 August 1993. c. On 9 September 1996, he accepted NJP for not returning to duty on 20 August 1996 and intent to deceive and make an official false statement on 21 August 1996 about a medical appointment. His punishment consisted of reduction to PFC/E-3, forfeiture of $271.00 pay per month for 1 month (suspended to be automatically remitted if not vacated before 9 December 1996). His record is void of any paperwork regarding the commander’s revocation of that suspension before 9 December 1996. d. On 11 February 1997, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13-2 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance, the Soldier failed two consecutive record Army Physical Fitness Tests (APFT). The commander recommended a general discharge. e. On 11 February 1997, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He acknowledged: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded f. He elected to submit a statement on his behalf. His statement included enclosures of DA Form 4856 (General Counseling Forms) on 13 December 1996 he was under the impression they were going to run the battery’s physical training run course. The course they ran was substantially more challenging. The course was a one mile course. It was one mile there and one mile back with hills. The first mile was not timed so he had a problem judging if he would make time. g. His unit commander subsequently recommended separation under the provisions of chapter 13-2, AR 635-200 for unsatisfactory performance for failure of two consecutive record APFT, with a characterization of service of general, under honorable conditions discharge. h. On 13 February 1997, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 13-2 for unsatisfactory performance, with his service characterized as general under honorable conditions. i. The applicant received orders number 056-0019 dated 25 February 1997 which reflect his rank as PFC. j. On 28 February 1997, the applicant was discharged, with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 5 years, 8 months, and 25 days of active service and 2 years, 7 months, and 5 days of foreign service. Item 4a (Grade, Rate, or Rank) “PFC”; Item 4b (Pay Grade) shows E-3 and Item 12h (Effective Date of Pay Grade) shows 9 September 1996. It also shows he was awarded or authorized: * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * overseas service ribbon * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar k. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation AR 635-200 a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that: In the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and /or become a satisfactory Soldier. 6. AR 635-5 (Separation Documents) in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. It stated that item 4a and 4b would provide the corresponding grade, rate, or rank and pay grade at discharge. 7. 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 partial relief was warranted. Based upon the applicant receiving NJP where he was reduced from SPC to PFC and there being no evidence show he was restored to the rank of SPC, the Board concluded there was insufficient evidence to grant the requested correction in rank to SPC. However, based upon the justification for the applicant’s separation being APFT failure and he completing a lengthy period of honorable service prior to being separated, the Board concluded that upgrading the characterization of service to Honorable was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the rank of the applicant as depicted on his DD Form 214. 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) 27-10 (Legal Services - Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment (NJP) under the Uniform Code of Military Justice. Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. a. Paragraph 3-19(6)(a). Reduction in grade. Promotion authority. The grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction. For the purposes of this regulation, a commanding officer has "promotion authority," within the meaning of Article 15(b), if he has the general authority to appoint to the grade from which reduced or any higher grade. b. Paragraph 3-24 suspensions. Ordinarily, the purpose of suspending punishment will be to grant to a deserving member a probational period during which he may show that he is deserving of remission of the suspended portion of his non-judicial punishment. If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed. Action vacating a suspension will be recorded in accordance with notes 10 and 11, Part III, DA Form 2627 (Record of Proceedings). Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action. c. Paragraph 3-28 describes setting aside and restorations. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. d. Paragraph 3-27 limitations with respect to reduction in grade. An unsuspended reduction in grade, imposed as NJP, becomes fully executed at the time it is imposed. Accordingly, there can be no remission of an unsuspended reduction. e. Paragraph 3-30 who may act on an appeal. An appeal under Article 15 will be acted upon by the authority next superior to the officer who imposed the punishment if the person punished is still of the command of that officer at the time he appeals, but if the punishment has been imposed under a delegation of the superior's power to impose NJP the appeal will be acted upon by the authority next superior to him. 3. Army Regulation (AR) 635-5 (Separation Documents) in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. It stated that item 4a and 4b would provide the corresponding grade, rate, or rank and pay grade at discharge. 4. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the requirements and procedures for administrative discharge 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 other characterization would be clearly inappropriate. 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. Chapter 13, of the regulation provides for separation due to unsatisfactory performance when a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that: In the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and /or become a satisfactory Soldier. The seriousness of the circumstances is such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale. 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 on the basis of 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) AR20170015894 2 1