ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180008359 APPLICANT REQUESTS: * an upgrade of his general under honorable conditions discharge to honorable * change his narrative reason for separation * rank of private first class (PFC/E-3) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States (U.S.)) 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 he was on a compassionate reassignment, unfortunately he was blamed for his squad leader’s action that made things worst. The reason for his discharge was a pattern of misconduct. He received an Article 15 as well as a general discharge. How is one Article 15 a pattern of misconduct? This reason did not fit his discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 December 1986. b. He accepted non-judicial punishment under the provisions of Article 15 on 20 January 1988, for failing to go at the time prescribed to his appointed place of duty and was disrespectful to a noncommissioned officer on 6 January 1988. His punishment was reduction to private (PV2)/E-2 (suspended and automatically remitted if not vacated before 20 April 1988) and extra duty for 8 days. His reduction vacated on 14 April 1988 for failing to go to the place prescribed. c. On 20 April 1988, a mental evaluation was conducted. The examiner stated the applicant had the mental capacity to understand and participate in board proceedings and was mentally responsible. The applicant was also psychiatrically cleared for any administrative action deemed appropriate by command. d. On 2 June 1988, the 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, section III, paragraph 14-12b for misconduct, pattern of misconduct The reasons for the proposed action is for receiving a company grade Article 15, apprehended twice by military authorities, and derogatory counseling statements. He recommended the applicant receive a general under honorable conditions character of service and advised the applicant of his rights. * consult with counsel or retain civilian counsel at no expense to the government * submit statements in his own behalf * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative board if he has 6 or more years of active or reserve military service at the time of separation * waive any of these rights in writing * withdraw any waiver of rights at any time prior to the date the separation authority ordered, directed or approved his separation * if entitled to have your case heard by an administrative separation board, he may submit a conditional waiver of that right e. On 2 June 1988, he acknowledged he had been notified of the pending separation under the provisions of chapter 14, AR 635-200. He consulted with legal counsel and was advised of the contemplated action to accomplish his separation for misconduct under the provisions of chapter 14, AR 635-200 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He submitted a statement in his own behalf. He acknowledged: * he understands that if he has 6 years of total active and reserve military service at the time of separation, he is entitled to have his case heard by an administrative separation board * he understands that if he has less than 6 years of total active and reserve military service at the time of separation and am being considered for separation for reason of misconduct, he is not entitled to have his case heard by an administrative separation board unless he is being considered for a discharge under other than honorable conditions * he understood that if he received a discharge/characterization of service which is less than honorable, he may apply to the Army Discharge Review Board and/or the Army Board for the Correction of Military Records to upgrade his discharge; however, he realizes that consideration by either board does not imply that his discharge would be upgraded * he will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge * he declined the to consult with counsel f. The applicant’s statement in his own behalf. He asked, if simple allegations are made against an individual, does that necessarily make the Soldier a bad one? He fully understands that his commander had to take action, and as a result he was demoted to the rank of PV2, but in addition to that he was separated from the Army. He thought this was one of the few places we were allowed a chance at life, where was his? In today’s Army, Soldiers are being caught with drugs and committing acts against the law, such as driving under the influence of alcohol. There are even those that are absent without leave. What about overweight Soldiers, their sizes cannot be missed? It amazed him how they are allowed a chance to change. He was not showing these points to say anything other than, what happened to him could happen to anyone, even the best that the Army has to offer. Additional comments may be reviewed (detailed statement enclosed in packet). g. On 2 and 9 June 1988, the immediate and intermediate commanders recommended the applicant be separated from the U.S. Army under the provisions of chapter 14, AR 635-200 prior to his expiration of term of service with a general under honorable conditions character of service. He requested that a rehabilitative transfer be waived, in accordance (IAW) paragraph 1-18d, AR 635-200. h. On 15 June 1988, the separation authority approved the request to separate the applicant from the U.S. Army under the provisions of chapter 14, AR 635-200 prior to his expiration of term of service with a general under honorable conditions character of service. Rehabilitative transfer requirements were waived. i. On 20 June 1988, he was discharged from active duty. He was discharged under the provisions of paragraph 14-12b, AR 635-200, with a general under honorable conditions separation. He completed 1 year, 5 months and 22 days of active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge (M-16). It also shows in: * items 4a (Grade, Rate, or Rank) and 4b (Pay Grade), PV2 and E-2 * item 12h (Effective Date of Pay Grade), 880414 * item 25 (Separation Authority), AR 635-200, paragraph 14-12b * item 26 (Separation Code), JKM * item 28 (Narrative Reason for Separation), Misconduct-Pattern of Misconduct 4. On 1 July 1988, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 10 March 1989, the ADRB determined the applicant was properly and equitably discharged and denied his request for an upgrade. 5. 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, to include abuse of illegal drugs, conviction by civil authorities, desertion, and absence without leave. 6. By regulation, AR 635-5 (Personnel Separations – Separation Documents), a. For item 25 (Separation Authority), enter the regulatory or other authority cited in the directives authorizing the separation as outlined. b. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active service. The instructions for completing the DD Form 214 specified: * items 4a and 4b show the active duty grade, rate or rank held at the time of separation * item 12h show the effective date of promotion to pay grade 7. The separation code “JKM” will be used for separation of enlisted personnel for misconduct-pattern of misconduct as outlined in AR 635-5-1 (Personnel Separations- Separation Program Designator). 8. 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. The applicant’s record has evidence that the command conducted a rehabilitative transfer of the applicant based upon previous misconduct. Based upon the applicant having multiple counseling statements in his record in addition to the one Article 15, including some of the counseling discussion violent behaviors towards others, the Board concluded that the characterization and narrative reason for separation was appropriately annotated on the applicant’s DD Form 214. Finally, based upon the information reflected on the applicant’s DA Form 2-1, the rank of the applicant was accurately depicted on his DD Form 214 at the time of separation. Therefore, the Board recommended denying all requested relief. 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) 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (1), 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. b. Paragraph 3-7b (1), 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, desertion, and absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is unlikely to succeed or impractical. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 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. 3. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribes the policies and procedures for the preparing and distribution of the DD Form 214 The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active service. The instructions for completing the DD Form 214 specified: * items 4a and 4b (Grade, Rate, or Rank) show the active duty grade, rate or rank held at the time of separation * item 12h (Effective Date of Pay Grade) show the effective date of promotion to pay grade * item 25 (Separation Authority), enter the regulatory or other authority cited in the directives authorizing the separation 4. AR 635-5-1 (Personnel Separations- Separation Program Designator (SPD)), in effect at the time, prescribes the SPD codes and authorities and reasons for separation from active duty. It states, in pertinent part, the regulatory authority of AR 635-200, paragraph 14-12b with the narrative reason of misconduct-pattern of misconduct will have an SPD code of JKM. 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 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) AR20180008359 8 1