ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20180013847 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 8 April 1982 * Kansas State High School Diploma, dated 1 May 1982 * Five Letter/Character References 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 submitted a DD Form 149 and a self-authored statement. He states: a. Upon being discharged from the U.S. Army, he made a visit to the Department of Veterans Affairs (VA) office in Pensacola, FL. This was his first of many attempts to determine his discharge status. When he was discharged from the military, he was told his discharge was a general discharge and that the discharge would be upgraded to honorable within six months. After so many attempts at the Pensacola, VA office, the VA representative casually stated "Look, the Army does not have any medical records on you; therefore, as far as the Army is concerned, you never existed in the military." He was instructed to travel to Montgomery, AL, for it was nothing else the Pensacola office could do. He explained that he was homeless with no transportation and it would be difficult to get to Montgomery, AL. Single and lost in the transition of life for years, and he finally begin dating his wife, and they later married. His wife for years has asked him to pursue the status of his discharge. With her initiation, they began gathering records. b. He went into the military to become a professional Soldier, a respectable man, and an asset to society. His basic training was great and his military tour began in Germany. On the day he arrived in Germany all the negativity started. The section staff sergeant (SSG) R. began making demands on him within the first hour of his arrival. The applicant responded to SSG R’s statements in a professional, polite, and respectful manner, which appeared to irritate him and resulted in him finding continuous fault on any and everything the applicant did. The applicant did not understand the military protocol. He was a young, naive, and an immature man who was assigned to Pinder Barracks located in Zirndorf, Germany. c. Before enlisting into the military, he had not been a person to get into trouble on a judiciary level. He was assigned to "A" Battery 6 Battalion 74th Field Artillery. Unfortunately, Pinder Barracks Kaserne was saturated with drugs, alcohol, and gambling, among other things. The drug usage was overwhelming. He tried to get himself acclimated to his surroundings, but it was to no avail. Regardless of negativity, he attempted to bring positive things to his life, such as representing A Battery in the 2- mile run. He also played on the base-level basketball team, which they traveled to other military installations to play. His section superior, SSG R, had a problem with him participating with the team. The applicant never failed a military inspection or a drug and alcohol urinalysis. He was not the perfect Soldier and never claimed to be. He made mistakes along the way and did not deny his errors, but attempted to use good judgment. d. A short time later and wanting to make his tour a positive journey, he attempted to introduce the idea of attending Basic Leadership School to his section chief, but the request was denied. He now knew that he needed to ask for a transfer to a different military installation and also change his MOS (military occupational specialty) because he had also qualified to work in radiology. He felt he could best serve the military in another capacity and continue his career. His new choice did not sit well with SSG R. The applicant was trying to salvage his career but received no support from his superior. e. He received an Article 15 for not being in formation, which he was at formation. SSG R. observed him speaking for a few minutes, with Captain (CPT) M., which the CPT was inquiring how he was adjusting to the military and asked how he were doing. They were all located in the same area. Due to him being detained by the CPT, his chief sergeant said he was technically late. It appeared his delay with the CPT was not a valid reason. The following four Article 15s are company grade levels. He was told each time regarding the Article 15 that if he challenged it, he would have to go through court-martial proceedings and he could receive 5 years in prison if he could not prove his case. He was manipulated in signing the paperwork. He never received an official court-martial. The information regarding the court-martial was not seen by his eyes until he requested his military records. f. The Article 15s that pertain to the summary court-martial, Charge Ill on the court- martial, E-5 (SGT) J.L.B. was not present. The applicant never met SGT B. Charge I and III, the statements are identical and the superiors present were not the same. Pertaining to one of the Article 15s, this was a violation of Article 86. We were on a post wide military alert. The vehicles were stationed for transit. The section chief left and told everyone to stay put. After 15-20 minutes had passed, the next person in charge left leaving the next person in lower rank in charge. This process continued for close to an hour, which left the applicant being the last person there to guard the vehicle. When no one came back to bring him up to speed about the alert guard, he went to find out what was happening and he stumbled upon the formation and asked what was going on. The section chief directed the applicant to get in formation and said nothing else. When his battery was dismissed, a sergeant first class (SFC) walked over to him and asked him where he had been. The applicant gestured, pointing towards the motor- pool, then the SFC asked the applicant to point his location of where he was positioned. When he turned to point to the location, the SFC blindsided him with a right downward punch that struck him on the left side of his head. The SFC then stepped back and got into a boxing stance anticipating him to retaliate, but he refused to because he knew it would only lead to criminal charges. g. He was immediately transferred to Headquarters Company that night. Lieutenant (LT) S. was the staff duty officer that night, and he came in contact with LT S. in the headquarters building, not "B" Battery, which are two different buildings. These charges are not true, very identical, word for word. For this is not what he said to LT S. who followed him around for 10 to15 minutes. So why would a LT and SGT follow him around, a private two (PV2)? Why weren't the MPs called? These were the questions he never asked because he was never given the opportunity to have proper legal representation. He was detained 24-48 hours later. h. When he was finally in front of CPT G., the applicant asked for legal representation and CPT G. instructed him to sign some paperwork so that he could then be granted legal representation. The applicant asked if he could read what he was signing, CPT G. said, "If you want your legal representation, you will sign this and get out of here before I change my mind!" The next time someone came to see him, they were the guards coming to handcuff him and take him to prison. That night he never received legal counsel. He was deliberately lied to, which led to him being imprisoned wrongfully, with no voice. He was even threatened to be issued an Article 15 because he decided to leave the military installation by himself during racial fighting with tension all around. He did not have a problem with any Soldier at Pinder Barracks. i. After Germany, he was sent to Kansas to be retrained. He always grew up in a multi-cultural environment. From his perspective, people were people and we were all here for the same purpose to protect our democracy and our country. This court martial has cost him a lot of mental anguish. It feels like a wound that never healed. He is reminded of it every Veterans' Day. He knows the Army installations are not all bad or the officers, NCO, and enlisted personnel. Still today, he speaks positively about the military as he mentors to young people, to possibly help them receive some understanding on what they are about to embark upon, which renders guidance when necessary and not make simple mistakes as he had in the past. His life is very structured. He is married to a wonderful wife and they are spiritually tied. He is requesting that his discharge be changed to an honorable. 3. On 19 November 1979, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 3 years. After completing one station unit training, the applicant was assigned to an overseas assignment in Germany. 4. The record shows he accepted nonjudicial punishment (NJP) on: * 14 May 1980 for failing to go at the time prescribed to his appointed place of duty * 1 August 1980 for disobeying a lawful order from an NCO and failing to go at the time prescribed to his appointed place of duty * 1 April 1981 for going from his appointed place of duty * 2 October 1981 for failing to go at the time prescribed to his appointed place on two occasions * 17 March 1981 for willfully being derelict in the performance of his duties 5. On 14 December 1981, the applicant received a bar to reenlistment for his record of NJP and for his attitude, unsuitability, and failure to perform prescribed duties. 6. On 18 January 1982, he was convicted by summary court-martial on: * one specification of disrespecting a superior commissioned officer by saying to him "F_ (expletive) it, I'm waiting for someone," I'm tired of this s_ (expletive) around here" * one specification of disrespecting a superior noncommissioned officer by saying to him "F (expletive) it, I'm waiting for someone," I'm tired of this tired a_ s_ (expletives) around here * one specification of willfully disobeying a lawful command from his superior commissioned officer * two specifications of willfully disobeying a lawful order from his superior noncommissioned officer 7. He was sentenced to reduction to private one (PV1)/E-1 and confinement at hard labor for 30 days. On the same date, the convening authority approved the sentence and ordered it executed. 8. On 28 January 1982, he was assigned to the U.S. Army Retraining Brigade, Fort Riley, KS. 9. The available service record is void of any documents affirming he received notice, or that he was given an opportunity to make elections. His record contains a personnel qualification record part II and DD Form 214, which show, on 8 April 1982, he was discharged with an under other than honorable conditions discharge. He completed 2 years, 3 months, and 26 days of net active service this period, of which, 1 year 10 months, and 4 days was Foreign Service. His DD Form 214 also shows: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized: M-16 Rifle and Hand Grenade Qualification Badges * Item 25 (Separation Authority): Paragraph 14-33b(1), Army Regulation (AR) 635-200 * Item 28 (Narrative Reason for Separation): Frequent involvement in incidents of a discreditable nature with civil or military authorities * Item 29 (Dates of Time Lost During This Period): "820118-820210" 10. The applicant provided: * Kansas State High School Diploma, dated 1 May 1982, which shows that he successfully completed the General Educational Development Examination * Five Letters/Character References, which attested to the applicant’s character as an employee, a family man, a friend, and a member of the congregation 11. The applicant states he went into the military to become a professional Soldier, a respectable man, and an asset to society. His basic training was great and his military tour began in Germany and on the day he arrived in Germany all the negativity started. The section staff sergeant, SSG R. began making demands on him within the first hour of his arrival. He found continuous fault on any and everything the applicant did. The applicant did not understand the military protocol. He was a young, naive, and an immature man who was assigned to Pinder Barracks located in Zirndorf, Germany. 12. The record shows the applicant enlisted at the age of 18 years old, he accepted five NJPs, he was convicted by summary court-martial of five specifications of disrespect towards his superior commissioned officer or superior NCO and/or willfully disobeying a lawful order command or order from his superior commissioned officer or NCO, which resulted in 23 days of lost time due to confinement. He completed 24 months of his 36 months contractual obligation. 13. AR 635-200 (Personnel Separations-Enlisted Personnel), Chapter 14, paragraph 14-33b(1), was a separation for frequent incidents of discreditable nature with civil or military authorities. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 14. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. 15. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 16. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed his statement, the nature and frequency of his misconduct, his bar to reenlistment and retraining experience, his post-service accomplishments and character references and considered the application of clemency. The Board determined that there was a lack of mitigating factors, that his post-service behaviors did not overcome his misconduct and to not grant clemency in this case. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 14 of the regulation dealt with separation for various types of misconduct. Paragraph 14-33b(1) provided for the separation of a Soldier due to frequent incidents of discreditable nature with civil or military authorities. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate 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. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Upon determination that a member is to be separated with a discharge certificate under other than honorable conditions the separation authority will direct reduction to the lowest enlisted grade by the reduction authority. 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 the applicant. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20180013847 4 1