ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20170019848 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his characterization of service is fully honorable in lieu of under honorable conditions, general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 when staff sergeant (SSG) M______ went with him to see Commander F_______, he was told that he had a good record and was asked why he was still a private/E-1. He told Commander F_____ that he was overweight and asked to be discharged early. The commander said his record was too good for that, he needed to mess up. He asked how, and he was told to go out drinking and skip work on occasion. So he did. When the new command replaced Commander F_______ he and SSG M______ were ordered to his office and he was asked why he was being insubordinate lately, he responded by stating “Commander F_____ told me to.” “SSG M______ verified that as a witness.” So the new commander granted him a discharge. He believes he would have finished his term of service, if he had not been told he should mess up. He also states: * he was young and naïve, and believes it was wrong for Commander F______ to order him to be insubordinate. * SSG M____ can verify the injustice * he was doing very well at his military occupational specialty (MOS) and he receive an Army Achievement Medal * he would have received an honorable discharge, had his commander not told him to act inappropriately, he simply had bad leadership * he hopes that his record shows he was a good Soldier and he should be honorably discharged 3. On 3 November 1986, at age 19, the applicant enlisted in the Regular Army for 3 years, and he held military MOS 94B (Food Service Specialist). 4. He served in Fort Greely AK from 29 April 1987 through 28 April 1988 and upon his return to the Continental United States, he was assigned to Fort Polk, LA, on 2 June 1988. 5. The applicant’s service record contains two statements, dated 18 and 19 August 1988, which show: a. On 18 August 1988, the applicant reported to work at the dining facility and he left without permission. The charge of quarter’s (CQ) runner went to his room to get him and he was asleep. He woke up and said he was not going back to work. He went back to sleep. The sergeant first class (SFC) went to his room to get him and he would not wake up. The SFC observed that his room was a mess, there were beer bottles and trash all over the room. b. On 19 August 1988, the applicant reported to work at 11:00 when he should have reported at 10:30. SSG M____ asked the applicant why he was late and he said, “I can’t get promoted because of my overweight problem, and I want to get out of the Army.” 6. On 6 September 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving his appointed place of duty (the dining facility) without authority. His punishment consisted of a forfeiture of pay, extra duty, and restriction. 7. On 6 September 1988, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him citing as the bases, his NJP, counseling’s, he showed a lack of discipline, lack of motivation, and he had no respect for his supervisors and peers. He furnished the applicant a copy of this bar and he elected not to submit a statement in his own behalf. The bar was approved on 13 October 1988. 8. The applicant’s service record contains four General Counseling Forms, dated between November and December 1988, which show on 13 November 1988, he failed to go to work, SSG M____ went to his room, his wall locker was open, he was not there, and his room was a mess. On 15 November 1988, he failed to report to the morning formation to prepare to move out to the field. SSG M____ went to get him, he was asleep. On 16 November 1988, he failed to report to morning formation for movement to the field and on 178 December 1988, he failed to report to the dining facility. 9. On 25 November 1988, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failure to go to his appointed place of duty at the time prescribed on 16 November 1988. His punishment consisted of a forfeiture of pay, extra duty, and restriction. 10. A Request for Mental Hygiene Division Consultation, shows on an unknown date, the applicant was being considered for a discharge under the provisions of chapter 13, Army Regulation (AR) 635-200. This document shows his misconduct and that he was on the overweight program from 28 April to 31 October 1988. 11. A Report of Mental Status Evaluation shows on 11 January 1989, he underwent a mental status evaluation. He was determined to be mentally responsible and met the retention standards of chapter 3, AR 40-501 (Standard of Medical Fitness). He was cleared for administrative separation deemed appropriate by his chain of command. 12. A Report of Medical Examination shows, on 18 January 1989, he underwent a medical examination and he was found qualified for separation. 13. On 31 January 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b), AR 635-200 (Personnel Separations-Enlisted Personnel) for misconduct - pattern of misconduct. 14. On 3 February 1989, the applicant acknowledged receipt of the commander's notification of intent to separate him. He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, 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 that were available to him. He elected not to submit a statement on his own behalf. His statement is not available for review with this case. The applicant further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 15. Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14, AR 635-200 for misconduct - pattern of misconduct. The immediate commander requested a waiver of rehabilitative transfer and recommended the issuance of a general discharge. 16. On 14 February 1988, the separation authority approved the recommendation under the provisions of chapter 14, AR 635-200 by reason of misconduct and directed the issuance of a general discharge. Accordingly, the applicant was discharged on 28 February 1989. 17. The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14, AR 635-200 by reason of misconduct with a general discharge, in pay grade E-1. This form further confirms he completed a total of 2 years, 3 months, and 26 days of creditable active military service. His DD Form 214 also shows he was awarded the Army Service Ribbon, Overseas Service Ribbon, and Army Achievement Medal. 18. AR 635-2000 states action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was 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. 19. The available service record does not contain evidence that shows the applicant’s commander advised him to commit misconduct so that he could be discharged and the applicant did not provide any such evidence. However, the available evidence shows in in August 1988, the applicant’s conduct started to become a problem. On 18 August 1988, when asked why he did not report to work, he stated because he could not get promoted and he could not get a discharge. He was discharged after he continuously refused to go to his appointed place of duty at the time prescribed and after receiving two NJP’s and numerous counseling’s. 19. The applicant stated that he was young and naïve when he served and that he earned the Army Achievement Medal. The Board can consider the applicants service record and his age in reaching its determination in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, 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 was 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. b. Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. 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 (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. a. 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. b. 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) AR20170019848 4 1