ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20180016244 APPLICANT REQUESTS: in effect: * removal of all DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) from his Official Military Personnel File (OMPF) * an upgrade of his reentry and performance status to reflect that he is eligible to reenlist in the Regular Army or U.S. Army Reserve * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 January 1983 to show his satisfactory military performance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 10 May 1980 * DD Form 214 for the period ending 3 December 1981 * DA Form 2627, dated 14 December 1982 * Orders 251-434, Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, dated 30 December 1982 * DD Form 214 for the period ending 12 January 1983 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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: * the specifications listed in his DA Forms 2627 do not provide the essential elements needed to constitute violations of Article 86 (Absent Without Leave) and Article 90 (Willfully Disobeying Superior Commissioned Officer) * after 1 week of basic combat training (BCT), he asked when he was going to report to the medical unit to continue his medical training * he was informed he was scheduled to go through BCT and advanced individual training (AIT) for military occupational specialty (MOS) 11B (Infantryman) * he informed his staff sergeant that was not what his recruiter told him * he already successfully completed BCT and AIT and his recruiter told him that he would not have to go through that training again * his commander told him that he would have to go through BCT because that is what his orders read * after consulting with a few incarcerated veterans and legal aid counsel substitutes, he was recently made aware that military enlistment contracts are subject to traditional principles of contract law * his recruiter misrepresented the terms of his contract to induce him to enlist in the Regular Army * his DD Form 214 is in error – he satisfactorily completed BCT and AIT as a basic combat medic and patient/clinical specialist * he sought to advance his medical career by enlisting in the Regular Army * his recruiter told him the Army would pay for his schooling and he would be assigned to a medical unit since he had already completed BCT and AIT * his concerns about his enlistment contract were not investigated by his chain of command * his Article 15 proceedings did not allow him the benefit of a thorough and impartial investigation * the error contributed to his unjust separation from military service and deprived him of his opportunity to fulfill his military service obligation honorably * the nonjudicial punishment (NJP) was unjust as it exceeded the provisions of Article 86 and Article 90 by instituting proceedings to separate him from military service * it would be unjust for his military records to reflect his discharge as general under honorable conditions and unsatisfactory performance when his prior military records reveal his performance during his time in service was nothing less than honorable 3. Section B (Agreements) of his initial DD Form 4 shows he enlisted in the U.S. Army Reserve on 10 May 1980 for a period of 6 years. He acknowledged that no agreements or promises were made to him by the Government. 4. He was ordered to active duty for training (ADT) effective 27 June 1980. 5. On 18 July 1980, he received NJP for leaving his appointed place of duty without authority on or about 10 July 1980. He did not appeal the findings or punishment. His commander directed placement of the DA Form 2627 in the restricted fiche (now known as folder) of his OMPF.? 6. On 13 August 1980, he was released from ADT to the control of his U.S. Army Reserve after completing BCT. 7. He was again ordered to ADT effective 10 June 1981. 8. On 3 December 1981, he was released from ADT to the control of his U.S. Army Reserve unit after completing AIT. He was awarded MOS 91C (Patient Care Specialist). 9. On 30 November 1982, he enlisted in the Regular Army. His DD Form 1966 (Record of Military Processing), DA Form 3268-40 (Statement for Enlistment), DA Form 3286-13 (Statement for Enlistment), and DD Form 4 all show he enlisted in career management field 11 (Infantry). 10. Headquarters, U.S. Army Training Center and Fort Jackson, Orders 236-652, dated 3 December 1982, assigned him to Company B, 1st Battalion, 1st Training Brigade, Fort Benning, GA, to attend BCT. 11. On 8 December 1982, he received NJP for failing to go at the time prescribed to his appointed place of duty, willfully disobeying a lawful order from a superior noncommissioned officer, and willfully disobeying a lawful order from a superior commissioned officer on or about 8 December 1982. He appealed the findings and punishment, stating: * he enlisted in the Regular Army under the false pretense presented by his recruiter * he was told he would not have to go through BCT because of his past service in the U.S. Army Reserve, but he was sent to a BCT site * he refused to train because of the above reason 12. On 14 December 1982 after consideration of all matters presented in the applicant's appeal, his commander denied his appeal and directed placement of the DA Form 2627 in the restricted fiche of his OMPF. 13. On 14 December 1982, he received NJP for failing to go at the time prescribed to his appointed place of duty and willfully disobeying a lawful command from a superior commissioned officer on or about 9 December 1982. He did not appeal the findings or punishment. His commander directed placement of the DA Form 2627 in the restricted fiche of his OMPF. 14. On 17 December 1982, his commander notified him of his intent to initiate action that may result in his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 13 (Unsatisfactory Performance). His commander recommended issuance of a General Discharge Certificate. He acknowledged receipt and indicated he did not desire military legal counsel or to provide statements in his own behalf for consideration. 15. On 17 December 1982, his commander submitted a request for waiver of rehabilitative requirements, stating: * the applicant has not demonstrated the level of maturity and self-discipline necessary to be a productive Soldier * he is a disruptive influence to the Soldiers in the unit * he has resisted the counselling efforts * his failure to go to training classes and disobedience of lawful orders and lawful commands have resulted in UCMJ action * he will not develop sufficiently to participate satisfactorily in further training * his retention would have an adverse impact on military discipline, good order, and morale of the unit 16. On 20 December 1982, his immediate commander initiated action to eliminate him under the provisions of Army Regulation 635-200, chapter 13, for failing to attend mandatory training classes and being a disruptive influence in the unit. 17. On 3 January 1983, the Commander, Headquarters, 1st Infantry Training Brigade, U.S. Army Training Center, Fort Benning, waived further counseling and rehabilitative measures. He approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed issuance of a General Discharge Certificate. 18. He was discharged on 12 January 1983 under the provisions of Army Regulation 635-200, chapter 13. He completed 1 month and 13 days of net active service during this period. His DD Form 214 shows his service was characterized as general under honorable conditions and he was assigned reenlistment code as RE-3. He was authorized award of the Army Service Ribbon. 19. On 10 August 1983, he petitioned the Army Discharge Review Board for an upgrade of his discharge to honorable. He stated: * he repeatedly asked his recruiter if he would have to redo BCT * his recruiter never gave him a direct answer – later his recruiter said he doubts since he had already completed BCT * upon arriving at Fort Benning, they told him that he was in BCT and "they did not want to hear it or anything pertaining to me being there for AIT only" * he did not participate in training and was sent to the company commander * he finally talked to the battalion commander who gave him an ultimatum – either train or get NJP under Article 15 * he received company and field grade NJP under Article 15 and was sent to a psychiatrist * numerous psychiatric evaluations concluded that nothing was wrong with him * his recruiter inadvertently messed up his paperwork * upon arriving at Fort Benning, his chain of command turned a deaf hear to him once he tried to explain that his orders and all his paperwork were messed up 20. On 30 March 1994, the Army Discharge Review Board denied his request for a discharge upgrade. The board stated: a. The record reflects that the applicant, in a very short period of time, demonstrated a negative attitude toward authority. He received two NJPs under Article 15 of the Uniform Code of Military Justice within a 6-day period. b. The record clearly reflects that the applicant agreed to undergo training, as necessary, to become proficient in an MOS. It does not appear that there was an injustice by the recruiter at the time of the applicant's enlistment. During testimony, the applicant indicated he fully understood the terms of the enlistment. He did not present any evidence before the board to substantiate that the recruiter erred. c. The record clearly reflects, as does the applicant's testimony, that the chain of command counseled the applicant. This counseling was done by the company commander, company cadre, command sergeant major, battalion executive officer, and battalion commander, all with negative results. 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 considered the applicant’s statement, his record of service, his completion of training as a member of the USAR, his enlistment in the Regular Army and the terms of the contract he signed, the frequency and nature of his misconduct, separation processing documents and the reason for his separation. The Board found insufficient evidence of in-service mitigation for the applicant’s misconduct or that the non-judicial punishment he received was in error or unjust. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service, reason for separation and reenlistment code the applicant received upon separation were not in error or unjust. 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. Paragraph 3-37 (Distribution and Filing of DA Form 2627 and Allied Documents) states the original DA Form 2627 will be filed in the Soldier's Army Military Human Resource Record (AMHRR). The decision to file the original DA Form 2627 in the performance folder or the restricted folder in the AMHRR will be made by the imposing commander at the time punishment is imposed. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the AMHRR Management Program. The AMHRR includes, but is not limited to, the OMPF, finance related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 provides that once properly filed in the AMHRR, the document will not be removed from the record unless directed by Board of the Army Review Board Agency. b. Appendix B (Documents Required for Filing in the AMHRR and/or Integrated Personnel Electronic Records Management System) is the authoritative source for documents required for filing in the AMHRR and its subsequent folders. The decision to file the original DA Form 2627 in the performance folder or the restricted folder in the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by any superior authority. Records of NJP presently filed in either the performance or restricted folder of the OMPF will remain so filed, subject to other applicable regulations. Records of NJP imposed prior to 1 November 1982 and forwarded on or after 20 May 1980 for inclusion in the OMPF will be filed in the performance folder. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set policies, standards, and procedures to insure the readiness and competency of the force while providing the orderly administrative separation of enlisted members for a variety of reasons. a. Paragraph 3-7a stated 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. Chapter 13 stated commanders will separate a member for unsatisfactory performance when it is clearly established that in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier or the seriousness of the circumstances is such that the member’s retention would have an adverse impact on military discipline, good order, and morale. The serve of members separated because of unsatisfactory performance will be characterized as honorable or general under honorable conditions as warranted by their military records. 5. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a table of U.S. Army reentry eligibility (RE) codes. * RE-1 applies to persons completing an initial term of active service who are considered qualified to reenter the U.S. Army if all other criteria are met * RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable * RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification * RE-4R applies to persons who retired for length of service with 15 or more years of active Federal service * RE-1A, 1B, 1C, 2, 2B, 2C, and 4A apply to persons who separated prior to the effective date of this regulation – qualified for enlistment provided the reason and authority do not preclude enlistment or require a waiver – applicants may not enlist until 93 days after separation if otherwise qualified 6. 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 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 a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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) AR20180016244 5 1