ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20190000046 APPLICANT REQUESTS: The applicant requests an upgrade of his general discharge, under honorable conditions to a fully honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 believes his discharge was unjust because he was singled out and targeted by his chain of command. The minor infractions for which he received nonjudicial punishment did not warrant the severity of punishment he received. The company level counseling statements for miscommunications with his supervisor that has been categorized as dereliction of duties were never addressed. He received citations and the numerous accolades he received contradict the narrative of a “pattern of misconduct.” 3. The applicant served honorably in the Regular Army (RA) from 9 May 1977 to 11 February 1979. He was issued a DD Form 214 for this period of service. On 12 February 1979, he reenlisted for 6 years, in pay grade E-4. He held military occupational specialty 52C (Utilities Equipment Repairer). He served in Germany from 6 May 1979 to 24 August 1982. He was assigned to Fort Riley, KS, on 22 September 1982. 4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 4 March 1983, for failure to go to his appointed place of duty at the time prescribed on 3 and 28 February 1983. His punishment consisted of extra duty and a forfeiture of pay. 5. On 6 April 1983, the applicant was offered an NJP for dereliction in the performance of his duties in that he willfully failed to complete police call (a distance of about 4.5 miles) on 2 April 1983. This document shows he demanded a trial by court-martial. 6. On 10 May 1983, the applicant was convicted by a summary court-martial of being derelict in the performance of his duties on 2 April 1983. He was sentenced to reduction to pay grade E-4. 7. A Letter, subject: Recommendation of Suspension of Punishment, dated 12 May 1983, was written by the officiating authority for the summary court-martial proceedings. This individual states the applicant’s actions were negligent to the extent that he did not notify his superiors that he did not have the resources necessary to complete the mission he was given. He likewise was negligent when he did not inform his superiors after the fact that he did not accomplish the mission. However, his behavior did not substantiate willful dereliction of duty. He did not intend to fail the mission. This official believed the applicant had not yet learned how to be an E-5 and recommended that the reduction be suspended for the purpose of intensive professional development. But this official stated he did not have the option of suspending the reduction. 8. On 11 July 1983, he accepted NJP for failure to go to his appointed place of duty at the time prescribed on 13 June 1983. His punishment included reduction to pay grade E-3, extra duty, restriction, and a forfeiture of pay. 9. On 11 July 1983, a mental status evaluation and a medical examination show the applicant was found qualified for separation. 10. A General Counseling Form, dated 12 August 1983, shows the applicant was counseled for repeatedly failing to comply with the military standards set forth in the regulations. He was also advised that if further performance of this nature continued separation action would be taken against him. 11. The applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14, Army Regulation 635-200 by reason of misconduct. The specific reasons cited are a company grade Article 15, a summary court-martial for dereliction of duty, a rehabilitative transfer, and an additional Article 15 after the transfer. 12. On 17 August 1983, the applicant acknowledged receipt of the commander's intent to separate him for misconduct. He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and of the rights available to him. He waived consideration of his case by a separation board, waived personal appearance before a separation board, and elected not to submit a statement on his own behalf. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws. 13. On 18 August 1983, the applicant's immediate commander initiated separation action against him in accordance with chapter 14, Army Regulation 635-200, for a pattern of misconduct. 14. On 22 August 1983, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct- pattern of misconduct, and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 15. On 26 August 1983, the applicant was discharged accordingly. His DD Form 214 shows he completed 4 years, 6 months, and 15 days of net active service this period and 1 year, 9 months, and 3 days of total prior active service; he was awarded or authorized: * Good Conduct Medal * Mechanic Badge * Army Service Ribbon * Overseas Service Ribbon * Noncommissioned Officer Professional Development Ribbon * Drivers Badge * Sharpshooter Marksmanship Qualification Badge Rifle (M-16) 16. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. The separation authority may direct a general discharge if such is merited by the Soldier's overall record. 17. He contends his dereliction of duties was never addressed. However, a summary court-martial found the applicant’s actions were negligent to the extent that he did not notify his superiors that he did not have the resources necessary to complete the mission he was given and he was likewise was negligent when he did not inform his superiors after the fact that he did not accomplish the mission. However, his behavior did not substantiate willful dereliction of duty, because he did not intend to fail the mission. The available evidence does not contain accolades and other evidence that refutes or contradicts his behavior demonstrated “a pattern of misconduct.” 18. He completed two thirds of his 6 year enlistment obligation. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity. The Board found limited evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 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 sets forth the basic authority for the separation of enlisted personnel, it provides: a. Chapter 14 applies to separating members for misconduct; specific categories at the time included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. 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. a. 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000046 5 1