ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20180002297 APPLICANT REQUESTS: * upgrade of his under honorable conditions discharge to honorable * change of his narrative reason for discharge to expiration of term service APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement from Applicant’s Legal Counsel, Mr. X., Attorney at Law * DA Form 2-1 (Personnel Qualification Record – Part II) * DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) * DA Form 4856 (General Counseling Form), 21 November 1989 * Applicant’s Response to DA Form 4856, 21 November 1989 * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), 1 March 1991 * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), 29 May 1991 * Applicant’s Separation Packet * DD Form 257A (General Discharge Certificate) * 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’s counsel states: a. The applicant enlisted for a period of four years with a general technical score of 80. The applicant viewed the Army as an opportunity to better himself and serve his country as many men did before him. After completion of training at Fort Benning, GA, the applicant was assigned to Fort Drum, NY. Like other young men, the applicant had some difficulties adjusting to his new surroundings. The applicant received two nonjudicial punishments within the span of 60 days resulting in reduction of rank, forfeiture of pay, extra duty and restriction. He attempted to soldier his way back until he was met with the incident that led to his discharge. During a unit health and welfare inspection, the applicant’s platoon sergeant claimed to have found blank ammunition (ammo) in the coat pocket that hung in the applicant’s wall locker. The applicant denies any knowledge of how the blank ammo got into his wall locker. He attests to loaning his coat to the platoon sergeant for use by another Soldier since he was not scheduled for funeral detail. It was after the detail and the return of his coat that the blank ammo was discovered in his wall locker. The platoon sergeant had to either blame the applicant or himself for leaving the blank rounds in the coat pocket. The platoon sergeant chose to the former. b. Because of the applicant’s poor performance record it was clear no one would accept his word of what probably happened. He was processed for separation from the Army. The applicant maintains in his Article 15 response statement (as he does now), that the blank ammo was not his. He has remained consistent with his story from the beginning. He was administratively discharged for a pattern is misconduct, but assured his discharge would be automatically upgraded so there was not a need to resist it. He denied the most serious allegation from the start and accepted responsibility for those acts he did commit. His chain of command did not believe him nor did he receive and support from his NCO (noncommissioned officer) support channel. Without their support, he no way of disproving the allegations. Since pin-on rank was used on the trench coat, it was common practice of loaning the coat to those in need. When asked by his platoon sergeant, Sergeant First Class (SFC) X., he gladly obliged. It never darned on him that the NCO would leave rounds of ammo in his coat pocket. c. The applicant understands the Board applies a “presumption of regularity” to his records and understands that it is impossible to prove, at this late age he did not commit the offense. The circumstantial evidence surrounding the incident and the applicant’s exceptional character since his discharge, substantiate his claim of not committing this offense. The Board should take his post-service conduct into consideration in determining whether he was the type of individual who would commit this offense. d. He has been a productive member of society since his discharge. He is clearly not the same man he was upon discharge and the discharge has served its purpose. The applicant’s counsel mentions a series of character letters, certificates and work records that attests to the applicant’s behavior and character since discharge however, they are not available for review by the Board. He currently works for a charitable organization helping families put their lives back together and has dedicated his life to bettering himself, his family and his community. The counsel notes one of the character letters states the applicant is a family man, hardworking man, and a productive member of society. Another letter notes he is honest, loyal, of good character, and a good provider for his family. His spouse speaks of his compassion, empathy and dignity. Counsel adds that the applicant is actively involved in his community, doing volunteer work for a C.D.F. since 2015. e. The military is the only organization in the country that someone’s character remain blemished after being fired. The applicant has borne the stigma of his general discharge long enough. As stated above, he did not commit the one serious offense for which he was charged. The offenses he did commit were minor in nature and not worthy of a general discharge. He has asked the applicant on several occasions why he wants to have his discharge upgraded. It is purely a matter of integrity. There is no financial gain and he certainly cannot reenlist at this point. He accepted responsibility for his mistakes some 30 years ago, but has lived with the albatross around his neck since then. Fundamental fairness requires he be allowed to tell his family and friends that he received an honorable discharge. The applicant asks the Board to upgrade his characterization of service on the basis of legal and equitable reasons. 3. The applicant’s service records shows: a. He enlisted in the Regular Army on 4 April 1989. b. He accepted nonjudicial punishment (NJP), Article 15 on: * 1 August 1989, for wrongfully escorting female guests into the barracks * 1 March 1991, for failure to go at the time prescribed to his appointed place of duty; his punishment consisted, in part, of reduction to private/(E-2) * 29 May 1991, for absenting himself from the unit without authority and with intent to avoid field exercises; his punishment consisted, in part, of reduction to private/E-1 c. On 24 June 1991, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14 paragraph 14-12b, for a pattern of misconduct. The commander indicated that his recommendation is based on the following: the applicant has been involved in numerous incidents of misconduct, of which three have resulted in punishment under Article 15, UCMJ. His misconduct includes failure to be at his appointed place of duty at the prescribed time and failure to obey orders. He has shown a gross disrespect for rules and regulations and despite many opportunities to conform to Army standards, he has failed to correct his behavior. The commander felt the applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. d. On 24 June 1991, the applicant acknowledged receipt of the commander’s intent to separate him. Subsequently, he consulted with legal counsel and did not submit statements on his own behalf. He acknowledged: * he was entitled to have his case considered by an administrative separation board if a discharge under other than honorable conditions is authorized * he could consult with counsel to consider whether or not to submit a conditional waiver * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge * he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws e. Subsequent to the applicant’s acknowledgment, the immediate commander initiated separation action against him for a pattern of misconduct. The chain of command recommended approval. f. On 12 July 1991, consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14, paragraph 14-12b, by reason of misconduct, pattern of misconduct and ordered his service be characterized as under honorable conditions (general), and he be issued a General Discharge Certificate. g. The applicant was discharged from active duty on 31 July 1991. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 14 paragraph 14-12b and issued a General Discharge Certificate. He completed 2 years, 3 months, and 18 days of active service with 10 days of lost time. It also shows he was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Marksman Marksmanship Qualification Badge with Rifle Bar (M16) * Marksman Marksmanship Qualification Badge with Mortar Bar (81mm) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 4. By regulation, action will be taken to separate a soldier for a pattern of misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 14 para14-2b. 5. 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 review of the application and all evidence, the Board determined relief is not warranted. The contentions of the applicant’s counsel 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 evidence of post-service achievements for the Board to consider. He was discharged for criminal offenses, and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. He did not separate after successfully completing his term of service; therefore, the request to show he ETS’d does not have merit. 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. 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) (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for separation 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 characterization would be clearly in appropriate. 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. Paragraph 14 (Misconduct) of this regulation establishes 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. Action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history 3. 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 an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002297 6 1