ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180009280 APPLICANT REQUESTS: upgrade his under other than honorable conditions discharge to either an honorable discharge or a general, under honorable conditions discharge. 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) * DD Form 149 (Application for Correction of Military Record) * Transcription of Court-Martial Trial * DD Form 214 (Report of Separation from Active Duty), ending on 3 November 1977 and 15 January 1974 * NGB Form 22 (Report of Separation and Record of Service) * Letters of Appreciation, Recommendation, and Commendation 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 needs his discharge upgraded so the Veterans Administration will process his medical disability claim for bladder cancer (service related to nuclear missiles). He has served his country honorable, in Air Force, Army, and the New York Air National Guard (NYARNG). He states his plea of guilty was submitted by his defense counsel with his suggestion as his overall service record in the Air Force and Army, up to that time, had been honorable. He had character witnesses in his unit that would attest to his service and explain the harassment he received from his section chief and battery commander. He was harassed because he regularly requested transfer to a medical military occupational specialty (MOS). The two Article 15s he was given were both completely false. The first Article 15 was for being absent without leave (AWOL) when in actuality he was in the barracks. The second Article 15 was again for being AWOL when he was in 5th General Hospital, Stuttgart, Germany. He had proof in his medical records, but the battery commander brought him up on charges anyway. b. From the time he reported to his unit in Germany he performed his assigned duty as an 82E20, Nuclear Missile Artillery Surveyor, in a professional military manner. He eventually advanced to assistant section chief. However, he was also continuously submitting requests for a transfer to a medical MOS. Even though he continued to perform his duties as an 82E20, his section chief and battery commander initiated the Article 15s and court-martial simply because of his desire to transfer out of his unit. He was never sentenced at his court-martial. He was sent to Mannheim Correctional Facility and then the U.S. Army Retraining Brigade, Fort Riley, KS where he was discharged under other than honorable conditions. 3. The applicant provides: a. DD Form 214, ending on 3 November 1977 and 15 January 1974, and his NGB Form 22. b. Letters of appreciation from Commander, Headquarters Battery, 2nd Battalion, 42nd Field Artillery (2/42) and Commander, Battery B, 2/42. c. Letter of recommendation from X___. d. Letter of commendation from Commander, Headquarters, 2/42. 4. A review of the applicant’s service record shows: a. The applicant had prior honorable service in the U.S. Air Force, U.S. Air Force Reserve, and the NYARNG when he enlisted in the Regular Army on 18 November 1975. b. DA Form 2-1 (Personnel Qualification Record), shows he was assigned to Germany following advanced individual training and served there from 27 February 1976 to 9 August 1977. c. On 29 March 1977, he accepted nonjudicial punishment (NJP) for one specification of AWOL form 25 March 1977 to 26 March 1977. The punishment he received included a reduction to private first class/E-3, suspended for six months, forfeiture of $50 pay per month for one month, and extra duty for seven days. He did not appeal. On 3 May 1977, the commander vacated the suspension and the unexecuted punishment of reduction was executed. d. On 12 May 1977, he accepted NJP for one specification of AWOL from 27 April 1977 to 2 May 1977. The punishment he received included a reduction to private (PVT)/E-1, forfeiture of $187 pay per month for two months, extra duty and restriction for 45 days. He elected to appeal, but his appeal was denied. e. On 10 August 1977, he was tried by Special Court-Martial for 11 specifications of failing to go to his appointed place of duty. A military judge found him guilty of all charges and specifications. He was sentenced to confinement at hard labor for 60 days. On 14 September 1977, the sentence was approved and ordered duly executed. f. On 25 August 1977, he was assigned to the U.S. Army Retraining Brigade at Fort Riley, KS. g. On 5 October 1977, he accepted NJP for one specification of failing to obey a lawful order. The punishment he received was extra duty and restriction for 10 days. He did not appeal. h. Fort Riley (FR) Form 121 (Correctional Progress Notes), dated 14 October 1977, shows recycling the applicant was not considered to be beneficial and would only result in more defiance and probably AWOL. Therefore, it was recommended the applicant be eliminated from the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 (Separation for Unfitness or Unsuitability), for misconduct. i. DA Form 2496 (Disposition Form), Subject: Awareness of Discharge, dated 17 September 1977, 24 September 1977, 30 September 1977, 7 October 1977, and 17 October 1977 shows the applicant being made aware of the opportunity to be discharged under the appropriate regulation pertaining to his situation. On each date annotated above, the applicant indicated he would like to be discharged at that time. j. On 18 October 1977, his immediate commander requested discharge for the applicant under AR 635-200, chapter 13-5. On 20 October 1977, the immediate commander informed the applicant of pending discharge proceedings due to his misconduct. The applicant acknowledged receipt. k. On 21 October 1977, after consulting with legal counsel regarding separation under the provisions of AR 635-200, chapter 13, he waived his right to consideration of his case by a board of officer, a personal appearance before a board of officers, and representation of counsel. He acknowledged: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued * he may be ineligible for many or all benefits as a veteran under both Federal and State laws if issued a discharge under conditions other than honorable * he may expect to encounter substantial prejudice in civilian life if issued a discharge under conditions other than honorable l. On 18 October 1978, the applicant’s commander initiated separation action against the applicant. He recommended him to be discharged from the service for misconduct because of frequent incidents of a discreditable nature. The commander stated: (1) Discharge for unsuitability is not deemed appropriate because his behavior is not due to an inability to satisfactorily perform within the meaning of unsuitability. His records reflect that he has 1 court-martial and 3 punishments under Article 15 of the UCMJ. He was sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation. However , his actions since arrival preclude accomplishment of the objective as evidenced by his resume of behavior, attitude and ability. (2) He has demonstrated little desire for returning to duty. He has received counseling by members of the leadership team and members of the professional staff agencies. The commander opined that the applicant did possess the mental and physical ability necessary to be an effective soldier, but his present record and his failure to react constructively to the rehabilitation program are indicative that he should not be retained in the service. l. On 26 October 1977, consistent with the chain of command recommendation, the separation approval authority directed the applicant be discharged under the provisions of AR 635-200, chapter 13, and furnished an under other than honorable conditions discharge. m. On 3 November 1977, he was discharged from active duty under the provisions of AR 635-200, chapter 13-5a(1) (Unfitness). His DD Form 214 shows he completed 3 years, 3 months, and 23 days of active service with 55 days of lost time from 25-25 March 1977, 27 April 1977 to 1 May 1977, and 10 August 1977 to 27 September 1977. It also shows he was awarded or authorized the: * National Defense Service Medal * Presidential Unit Citation Medal * Air Force Medal * USAF Outstanding Unit Citation * Expert Marksmanship Qualification Badge with Rifle Bar * Air Force Good Conduct Medal n. On 20 June 1988, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. By regulation, an action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to success or rehabilitation is impracticable or his is not amenable to rehabilitation measures. 6. 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. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) 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 or obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 (Separation for Unfitness or Unsuitability) states an action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to success or rehabilitation is impracticable or his is not amenable to rehabilitation measures. 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20180009280 6 1