ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20170019248 APPLICANT REQUESTS: The applicant requests an upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Central Arkansas Veterans Healthcare System, Littlerock, AR, dated 2 October 2014 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: a. He was falsely accused, mislead and misinformed by his superior officer. To the best of his knowledge and memory, he went to town one evening because he was left behind from field duty, due to his approaching discharge. While there, he was harassed by some local town citizens who often harassed and bullied him and other service men of color. He was attacked and fell to the ground and received some severe scars and wounds to his face. When he was able to get to his feet, he ran as fast as he could and out ran them. He ended up running into a local bus station. Two police officers who were also getting on the bus approached him. They arrested him and accused him of attempting to break into a house. The officers then took him down a very dark street that led to a house, which they stated that he had attempted to break into. They shined a bright light in his face and then a young kid, who appeared to have been in his early teenage years, identified him as the person he fought and ran off his property. He did not realize all that was taking place until he was eventually taken to a jail cell. Not long after that, his platoon leader came to get him out and as he attempted to explain what had occurred he began to advise the applicant to "Just plead guilty." He had to appear in court; the results turned out to be minor charges. b. He then had to appear before the company commander and, as a result of all that had occurred, he was demoted from a specialist four (SP4/E-4) to a private (PV2/E2. He received a general under honorable conditions discharge. His platoon leader informed him that this would not affect his civilian life. He was very upset and called his mother for some support and direction. She encouraged him to be grateful and count it as a blessing from surviving the war and, in some kind of way, try to let this misfortune go. Over the years, he came to the realization that maybe this discharge was not so bad after all, even though the events which caused it to have left him with inner grief. He was still able to receive the GI Bill and many years of honorable employment with the Central Arkansas Veterans Healthcare System, where he has served proudly as a Licensed Practice Nurse for 40 plus years. He is proud to say he is still serving. c. He recently learned about Government Homeowner's Insurance and, after some research and inquiring, he became very interested because this benefit would serve as a great resource to his household. After applying, he was denied approval and the justification was because of his discharge status. After researching, he was encouraged to contact his service to appeal his discharge status. Unfortunately, his word and memory are all that he has at this time since so many years have gone by. He does not have access to his employer who may provide any documentation of his work ethic, performance, and character, should evidence be needed towards the decision-making process. 3. On 24 May 1965, at the age of 21 years, he was inducted into the Army of the United States. On 1 November 1965, after completing initial entry training, the applicant was assigned to his first duty assignment at Fort Bragg, NC where he deployed to the Dominican Republic. 4. On 9 March 1967, the applicant accepted nonjudicial punishment (NJP) for drawing a small caliber pistol against another Soldier. He appealed the NJP and it was legally reviewed and the punishments were found to be partially incorrect in law. The appeal was granted-in-part by reducing the punishment of restriction from 60 days to 45 days. a. The applicant elected to make a statement on his own behalf: He stated: (1) He appealed the punishments imposed upon him because he had no weapon in his possession on the night of the slight affray at the club. Due to the odyssey of Black Soldiers entering a club that was predominantly Caucasian. The personnel who had been drinking produced some static. When the Nucleus of the excitement reached its climax, he went outside of the club and started talking about whipping someone. Some of the patrons and employees of the club must have imagined that he had a gun in his possession. If he really had a gun, more people that were outside would have seen it and the military police or the Criminal Investigation Department (CID) would have found it in the investigation. He accepted the Article 15, under Uniform Code of Military Justice (UCMJ) due the fact he was advised of a light punishment by the battalion adjutant and due to the few statements reflecting he had a gun. (2) He did not believe he would be found innocent. He is appealing he punishment because he had no gun and enough people were there that could have made statements, inferring he had no weapon. Those people should have been asked to make a statement. b. The battalion commander responded to the applicant’s statement. He stated the applicant appeared before him to accept punishment under Article 15. At that time, he stated that he was prepared to award the applicant punishment unless the applicant desired court-martial. He flatly stated that he did not want a court-martial and would accept nonjudicial punishment. He further refused to make any statement concerning the incident he was involved in. 5. On 21 March 1967, the immediate commander initiated a bar to reenlistment against the applicant in accordance with Army Regulation (AR) 635-200 (Personnel Separations – General Provisions for Discharge or Release), paragraph 8c and Department of the Army (DA) Message 776287 (Bar to Reenlistment): a. The commander stated the applicant was a substandard Soldier who had been in the unit for 15 months and his expired term of service (ETS) was 23 May 1967. The applicant had a poor aptitude for military life and did not meet the standards set forth by others around him. The applicant had a record of repeated minor offences ranging from a civil conviction of peeping tom where he was fined $100.00 and released, to misconduct in the unit as evidenced by the Article 15. He had counseled the applicant on numerous occasions and has advised him of the adverse consequences which might ensue. All other rehabilitation action failed to date and his conduct and efficiency was unsatisfactory. b. The applicant acknowledged receipt of the action taken against him and elected to submit a statement on his behalf. He stated he would like to submit a plea to have his unsuitability for reenlistment lifted. He thought that during his tour of service he performed his duty to the utmost of his ability to his country as a Soldier. Due to the fact he was convicted once in a civilian court for something he was unable to prove his innocence and the Article 15 in which he was told that his innocence would be almost impossible to prove in a courtroom, he did not think that he should be barred from reenlisting. He believed that the punishment he received was more than enough in both cases. 6. The chain of command recommended approval and on 8 May 1967, the Adjutant General for the 82nd Airborne Division, Fort Bragg, NC approved the bar to reenlistment for the appropriate authority. 7. His enlisted qualification record shows in: * Record of Assignments: he received all excellent ratings for conduct and efficiency with the exception of the period of 11 October 1966 to 7 May 1967; he received unsatisfactory ratings * Remarks: "Not recommended for further service" 8. On 23 May 1967, the applicant was released from active duty accordingly. His service was characterized as an under honorable conditions (general) discharge. He completed 2 years of total active service with 10 months and 10 days of Foreign Service. He was transferred to the U.S. Army Reserve (Annual Training), Saint Louis, MO with a service obligation until 27 May 1971. His DD Form 214 shows and he was awarded or authorized: * Parachutist Badge * National Defense Service Medal * Armed Forces Expeditionary Medal * Combat Infantryman’s Badge 9. The applicant provides a Central Arkansas Veterans Healthcare System Service Award, Littlerock, AR, dated 2 October 2014, which shows he was presented the award in appreciation of 40 years of dedicated service to the U.S. Government. 10. The record shows, he was inducted at the age of 21 years old and he accepted NJP. The applicant states he was falsely accused, mislead, and misinformed by his superior officer regarding his legal issues and his general under honorable conditions discharge. He applied for Government Homeowner's Insurance but was denied because of his discharge status. 11. AR 601-280 (Personnel Procurement – Army Reenlistment Program), in effect at the time, prescribed procedures for the denial of enlistment to persons whose reentry into or continued service with the Army is deemed not to be in the best interests of the military service. 12. AR 635-200, paragraph 8c, prescribed procedures for separating members who were untrainable, or unsuitable for military service. When discharge under other procedures is not warranted, action will be taken to bar the enlistment or reenlistment of individuals with record of habitual minor misconduct whose conduct and efficiency ratings warrant a general discharge but do not warrant an honorable discharge. 13. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 14. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After review of the application and all evidence, and in addition to the administrative notes below the signature, the Board determined that there is sufficient evidence to grant partial relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of honorable post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s post-service achievements have mitigated the misconduct resulting in the discharge characterization. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 amending his DD Form 214: * item 13a (Character of Service): “Honorable” vice “Under Honorable Conditions” * item 13c (Reason and Authority) “Secretarial Authority” * item 15 (Reenlistment Code): “1” vice “RE-3, 3A” 2. The Board recommends no personal appearance. ____________X_________________ CHAIRPERSON 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s record shows his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for period ending 23 May 1967, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214, item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) by adding the M-60 Machine Gun 2nd Class Gunner Badge and M-16 Rifle Marksman Marksmanship Qualification Badge. 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 601-280 (Personnel Procurement – Army Reenlistment Program), in effect at the time, prescribed procedures for the denial of enlistment to persons whose reentry into or continued service with the Army is deemed not to be in the best interests of the military service. This regulation stated: a. Soldiers could be barred from reenlisting who were untrainable or unsuitable for military service and any commander in the Soldier’s chain of command could initiate a bar to reenlistment. Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the Soldier so he or she could submit a statement on his or her own behalf. Upon receipt of the comment of the individual, the certificate will be indorsed by the brigade/regimental or separate battalion commander, and approved or disapproved by the commander exercising general court-martial jurisdiction, the major commander, or Headquarters, Department of the Army. Each member of the chain of command must have then endorsed the bar to reenlistment to the proper approval authority. For a Soldier with less than 10 years active Federal service at expired term of service (ETS), this authority may be delegated to commanders with special court-martial authority. b. When a certificate has been approved by the appropriate commander, the custodian of the individual's personnel records will place a signed copy in the individual's Military Personnel Records Jacket U.S. Army (DA Form 201) where it will remain a permanent part of the file. The remark, "Not recommended for further service," will be entered on the individual's Enlisted Qualification Record (DA Form 20) and the enlisted person concerned apprised that he is barred from reenlistment. 3. AR 635-200 (Personnel Separations – General Provisions for Discharge or Release), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 8c, prescribed procedures for separating members who were untrainable, or unsuitable for military service. It stated those individuals who were found to be so lacking in abilities and aptitudes as to require frequent or continued special instruction or supervision, and those individuals whose interest and/or habits frequently require corrective or disciplinary action will be identified as soon as possible with the view toward disposition in accordance with appropriate regulations. When discharge under these procedures is not warranted, the following action will be taken to bar the enlistment or reenlistment of individuals with record of habitual minor misconduct whose conduct and efficiency ratings warrant a general discharge but do not warrant an honorable discharge: (1) In each applicable case, the unit commander of the individual will prepare a certificate signed in duplicate summarizing the basis for the actions which ensue. He will refer the certificate to the enlisted man concerned for a statement as required by paragraph 7, AR 640-98 (Filing of Adverse Suitability Information in Individual Records). The certificate will be indorsed by the regimental or separate battalion commander, and approved or disapproved by the commander exercising general court-martial jurisdiction. (2) When the certificate is approved, the commander with custody of the Soldier's personnel records will place a signed copy in the soldier's Personnel Records Jacket (DA-Form 201) where it will remain a permanent part of the file. He will also enter the remark, "Not recommended for further service" in the "Remarks" section of the Enlisted Qualification Record (DA Form 20). (3) Commanders of transfer activities will examine each service record of personnel undergoing transfer processing and when the remark prescribed in (2) above appears in the service record and an honorable discharge is not warranted will enter in item 30, DD Form 214, the remark ''Paragraph 9 (or paragraph 10, as applicable). AR 601-210 applies -- AR-640-98 complied with." b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The issuance of an honorable discharge is conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. 4. 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 the applicant.