ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20180009182 APPLICANT REQUESTS: via counsel, reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Insert for items 5 and 6 of DD Form 149 by counsel * Letter for VA Form 21-22a & Appointment of Individual as Claimant's Representative, 7 September 2017 * Support letter from FS, 27 September 2017 * Letter by counsel, 31 May 2018 * HS diploma * Documents from service record FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001063473 on 31 January 2002. 2. Counsel states in effect, he believe that the discharge under other than honorable conditions to be in error or unjust for the following reasons: a. The applicant's service, as a whole, was good and a discharge under other than honorable conditions was too severe. In total, the applicant served two back-to-back terms of service in the Army, comprising over 5 1/2 years of service collectively. He was honorably discharged during his first term of service on May 1, 1978. During his first term of service, the applicant received several positive performance reports and evaluations from his superiors, demonstrating that he is capable of performing his military duties and responsibilities. He received an honorable discharge for his initial term of service. During his second term of service, he was served with a paternity suit from his girlfriend. He was trying to get assistance from his chain of command but never received any assistance. The paternity suit along with other personal issues adversely affected his service. He continued to be a Soldier regardless of his personal a. issues and performed well. He received accolades for his accomplishments over his second term of service. His infractions in his second term does not nearly rise to the level of infractions typically associated with a discharge of under other than honorable conditions. Along with his honorable service in term one does not equal the type of discharge he received. b. The applicant completed over two years of his three year commitment before being discharged. His chain of command built a packet of charges and issued him one of the most severe discharges rather than recommending discharge earlier in his second term with a less severe discharge classification. His infractions were minor ranging from tardiness to uniform/appearance infractions. He was barred from reenlistment but the bar was lifted showing he was on the right path to being a good Soldier. By the time of his discharge, he clearly established a back medical condition. c. During service, the applicant was singled out by his superiors. He received records of counseling for showing up late to formation and other minor infractions. Others in his battalion engaged in the same behavior and were not counseled or punished. The applicant was the only African American man in his battalion and all of the other servicemen and supervisors in his battalion were Caucasian. Although the applicant is not sure if this was the reason why he was singled out, this may have been a contributing factor. d. Post-service he was employed as a housekeeping aid – environmental services for 7 years. Unfortunately, his disabilities eventually worsened to the point where he was no longer able to perform his duties and had to retire from his job in January 2014. 3. The applicant provides: a. Testimony from his counsel addressed above and attached. b. Letter for VA Form 21-22a & Appointment of Individual as Claimant's Representative, 7 September 2017. c. Support letter from FS, 27 September 2017, stating in effect the applicant was very reliable and hard working. He also had good communication skills and customer care skills. His attendance was good and always comes to work on time. He assisted in the training of new employees and goes out of his way to help a patient showing compassion for those around him. He worked on the weekend and longer than usual hours just to get the job done. d. Letter by counsel, 31 May 2018, reiterating his earlier addressed statement. He also in effect stated the applicant would have received more substantial support with his problems which would have enabled him to continue to serve as a good Soldiers. He again states the applicant’s discharge should be upgraded to honorable or general under honorable conditions. a. e. High school diploma showing equivalency of four years of standard high school work. f. Letter of commendation, 17 January 1978, for appreciation while working as administrative assistant. g. DD Form 214 ending 22 May 1975 showing he received an honorable discharge. h. Package of counseling’s from August 1978-June 1980 showing multiple infractions. i. Bar to reenlist review, 13 September 1979, recommending the bar to reenlistment be lifted. j. 5 Article 15s showing he received non-judicial punishment for several different infractions. k. Separation packet, 13 August 1980, showing his immediate commander recommended him for discharge under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 14 (Separation for Misconduct): apathy and inability to expand effort constructively, as well as a long history of disciplinary action. l. Notification to appear, 18 November 1980, to the counsel of the applicant before a board of officers on 2 December 1980. m. Board member approval, 31 December 1980 showing the personnel that were approved as members of the administrative discharge board. n. Summary of Proceedings, 4 February 1981, specifically convened for the purpose of determining whether the applicant should be discharged for misconduct, UP of chapter 14, AR 635-200. o. Illegible copies of service record. p. DD Form 214 ending 18 March 1981 showing he was discharged under other than honorable conditions for misconduct-frequent incidents of a discreditable nature with civil or military authorities. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 18 July 1975 and reenlisted on 23 May 1978. b. He received non-judicial punishment on/for: a. * 1 November 1978, steal a noon meal, of a value of about $1.30, the property of Dining Facilities, he was reduced to private first class (PFC) (vacated) * 1 November 1979, on or about 0655 hours, 23 October 1979 without authority, fail to go at the time prescribed to your appointed place of duty, to wit: physical training formation, reduced to PFC (suspended), was set aside on 9 November 1979 * 10 April 1980, on or about 7 April 1980 without authority, fail to go to your appointed place of duty, to wit: Headquarters Company supply room, reduced to PFC (suspended) * 12 June 1980, on or about 6 June 1980, were disrespectful toward SSG Mc , by raising your voice and cursing at him, reduced to PFC; he appealed and was granted partial relief * 12 November 1980, on or about 16 September 1980, fail to go at the time prescribed to your appointed place of duty, to wit: 0655 formation and 0800 formation, 18 September 1980-0630 formation, and 22 September 1980-0655 formation; reduced to E-1; he appealed and his request was denied c. The applicant’s records are void of the details of the his separation packet. d. 6 March 1981, letter from the commander of the 82nd Airborne Division at Fort Bragg, North Carolina, to the applicant's battalion commander, shows that the applicant had an approved request for discharge and that he would be furnished an Under Other Than Honorable Conditions Discharge Certificate. e. Accordingly, the applicant was discharged UP of Army Regulation 635-200, paragraph 14-33b(1), for misconduct-frequent incidents of a discreditable nature with civil or military authorities, on 18 March 1981. He completed 2 years, 9 months, and 26 days of active service this period. f. On 13 April 1983, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge and determined that he was properly discharged. The ADRB denied his request for an upgrade of his discharge. 5. On 7 February 2002, the applicant was notified that the Army Board for Correction of Military Records on 31 January 2002, the Board considered his application under procedures established by the Secretary of the Army, and the application was denied. 6. By regulation, AR 635-200, chapter 14, sets forth the basic authority for the separation of enlisted personnel for misconduct. Soldiers are subject to separation under the provisions of this section for the following: Patterns of misconduct. Frequent incidents of discreditable nature with civil or military authorities. 1. 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 for consideration of discharge upgrade requests, the Board determined that partial relief was warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the bar to reenlistment and its removal, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation and determined that his post- service references were insufficient to overcome his misconduct. Based upon a preponderance of evidence to include the pattern of misconduct outlined in the SM’s file, specifically formal counseling statements and the records of non-judicial punishment in the applicant’s record, the Board concluded that the characterization of service received at the time of separation was not in error or unjust. The Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 18 July 1975 until 22 May 1978.” 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 upgrading the characterization of his discharge. 9/4/2019 CHAIRPERSON Signed by: 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. Army Regulation (AR) 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 2. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a(1) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member. b. Paragraph 1-13a(2) states An honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial. When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member. c. Paragraph 1-13b states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious a. infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. d. Paragraph 14-33b(1) states members are subject to separation under the provisions of this section for the following: Patterns of misconduct. Frequent incidents of discreditable nature with civil or military authorities. 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 (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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.