ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20190003669 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from general, under honorable conditions to honorable. 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) * Statement written in his own behalf * Character reference Statements (x2) 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 joined the military at age 17. He made mistakes, but none worthy of discharge. Many of his problems were exacerbated by his direct supervisor, who hated him because of the color of his skin, and he made no secret of that. He stopped drinking alcohol and worked very hard to redeem himself, but Sergeant (SGT) B_____ was determined to force him out of the Army. Additionally, he states he has served his country for 34 years by hauling ordinance to military base and installations with a Government security clearance. He provides a self-authored letter, it states: a. He left home at the age 16. As a young person he had little to no guidance or instructions on how to behave like a man. At age 17, he went through boot camp and then directly to Germany. He had not drank more than a beer a few times because it was nearly impossible for anyone underage to get. When he arrived in Germany, beer and hard liquor were easy to get and he admittedly consumed far too much, too often. This caused lots of problems for him, so he quit drinking and as of this date he does not drink. Unfortunately, he made several mistakes before he quit drinking and that combined with a SGT who openly despised him was a ball that he could not stop from rolling. b. He makes no excuses for his mistakes, he owns them. However, when he stopped drinking, he worked very hard to redeem myself in the eyes of the Army. He did not believe any of the mistakes he made would have gotten him kicked out of the Army. Due to the absence of a father figure as a teen he had no guidance. c. When SGT B_____ was finally transferred and he found a deep desire to succeed in the Army. He worked hard towards that goal. But, it was too late. The action to remove him from the Army had already been started and nothing he did helped. He has held very high security clearances, owned a successful trucking business serving the military, and raised three great children. One college administrator, a State cop, and another owns a plumbing company. Both of his boys are combat veterans. Over the years he has grown closer to the Lord and examined his life. d. He has grown more embarrassed of his behavior as a teen. His discharge has not affected his life outwardly, but it has eaten him up inside over the years. One reason is he is a patriot. His behavior as a teen does not reflect who he is. His discharge does not reflect his dedication and love for country. He has served his country honorably in many other ways. 4. On 7 November 1977, at the age of 17, the applicant enlisted in the Regular Army for 3 years. He held military occupational specialty 76Y (Supply Specialist). He served in Germany from 31 March 1978 through 9 March 1980. 5. His records shows within 120 days from his date of assignment, between July 1979 to October 1979, the applicant was counseled four times by various members of his chain of command for various infractions including failure to report to duty on time, poor duty performance, missing physical training and lying about it, leaving his duty station, and failing to perform maintenance on a truck that broke down and had to be towed, which involved a report of survey. 6. The applicant, while in Germany, accepted nonjudicial punishment (NJP): a. On 4 January 1979, for willfully disobeying a lawful order from a commissioned officer to pick up the mail from the servicing Army Post Office, on 23 December 1978. His punishment consisted of reduction to private pay grade E-2 and a forfeiture of pay (suspended 90 days), and extra duty. On 21 February 1979, the unexecuted portion of this punishment was vacated. b. On 24 September 1979, for making a false official testimony at a court-martial trial of another Soldier. His punishment included reduction to pay grade E-1, a forfeiture of pay, and extra duty. c. On 14 January 1980, for failing to go to his appointed place of duty (morning formation) at the time prescribed on 7, 8, 9, and 10 January 1980. His punishment included a forfeiture of pay and extra duty. 7. On 30 October 1979, he was found both medically and mentally qualified for separation. 8. On 21 December 1979, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities and as an established matter of shirking. 9. The applicant acknowledged receipt of the commander's intent to separate him. 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, the possible effects of this discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a board of officers and a personal appearance before a separation board. The available record contains one statement the applicant submitted in his behalf. This statement was from Staff Sergeant (E6/SSG) JHT, the Supply Sergeant who supervised him, dated 4 March 1980, who stated: a. He was attempting to eliminate some of the damage to the character of service/type of discharge the applicant would receive. b. During the 60-plus days the applicant worked for him were with enthusiasm of someone perusing a career even though he realized at the time steps were being taken to eliminate him from the service. He displayed an uncanny ability to grasp instructions and begin work on almost any project and complete them to standard, usually higher than those that were set by him. c. He was attempting to say that all of the actions taken against the applicant were not his fault. During the applicant’s period of enlistment he had two supervisors, one he did not know, and the one directly responsible for the action being taken against the applicant, who should not have been in the position to supervise anyone. Most of the applicant’s supervisors felt the same way that he did, yet the action was being completed. d. In defense of himself, he was not disenchanted with the service. [He was writing this letter] to let businessmen know the Army was not perfect. Sometimes it could result in a good man receiving the brunt of the burden of trying to prove to a potential employer what he has stated in this letter. e. If there was any questions concerning anything that he had stated, or if he was able to help, he could be contacted at the address on this letter. 10. Following the applicant’s acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with AR 635-200, chapter 14, for misconduct – frequent incidents of a discreditable nature. The immediate commander stated the applicant had a completely negative attitude toward the Army, he was apathetic and had stymied all attempts by his superiors to rehabilitate him. 11. The applicant’s commander also submitted a statement, subject: Evaluation of the Applicant, dated 15 January 1980, stating based on his counseling sessions and observation of the applicant’s duty performance he had no potential for continued productive service with the U.S. Army. He had failed to improve despite the repeated efforts exhibited by the members of his chain of command to rehabilitate him. He had not responded to the genuine concern and efforts of his immediate supervisor even though he was a rehabilitative transfer to this company by his previous unit. The applicant had been given every opportunity to succeed but has never chosen this alternative. His extremely negative attitude towards the Army rendered him a counter- productive individual to his section. His continued presence in the unit was extremely detrimental to unit morale and effectiveness. 12. The applicant's intermediate commanders recommended approval of the discharge action. 13. On 21 February 1980, the separation authority approved the discharge action and ordered the applicant discharged under the provisions of chapter 14, AR 635-200 due to misconduct and directed that he be furnished a General Discharge Certificate. The applicant was discharged on 10 March 1980. 14. The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14, AR 635-200, by reason of misconduct – frequent involvement in incidents of a discreditable nature with civil and/or military authorities. His service was characterized as under honorable conditions. He completed a total of 2 years, 4 months, and 4 days of active service. 15. He provides a statement from Ms. BH addressed to who it may concern stating she has known the applicant since 1995. She knows him to be a man of impeccable character. He is hard working, generous, kind, and he is always ready to help everyone. He has worked in the trucking industry for 34 years. He has passed background checks to haul highly sensitive materials for the military, including explosives. He was highly capable of performing all aspects of his job with great care and concern for safety and trusted with sensitive information which he handled with confidentiality and discretion. In the latter years of his career he was an owner operator of several trucks and he continued to meet or exceed the stringent standards required in this highly regulated industry. He is a man of integrity. He has compassion for his fellow man. He is a good man and it is her belief that he is deserving of the recognition and pride of the Army which would allow his military record to be amended from a general discharge to an honorable discharge. He is a patriot, he loves his country, and if called upon today he would defend the United States with every fiber of his being. 16. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories 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. 17. The applicant states he left home at the age of 16 and at the age 17 he joined the Army. He made mistakes, but none worthy of discharge. His direct supervisor hated him. Since his military service, he has served his country for 34 years by hauling ordinance to military bases and installations with a Government security clearance. The available evidence shows: a. He was 17 years at the time he enlisted, he completed training, assigned to Germany where he started to receive counseling's of indiscipline within 120 days of his assignment. He later accepted NJP on three occasions and discharged by the time he was 19. SSG JHT, appears to be one of his supervisory who submitted a statement on behalf of the applicant to inform the approval authority, what took place with the applicant was not solely his fault; the applicant was unfortunately assigned a supervisor who should not have been in a supervisory position. He provides a letter of reference attesting impeccable post service character. He completed a total of 2 years, 4 months, and 4 days of his 3 year obligation. b. In making its determination, the Board should consider the applicants age, his petition, and service record in accordance with the published equity, injustice, or clemency determination guidance published on 25 July 2018. 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 applicant had no wartime service, no meritorious personal awards and insufficient evidence of mitigating circumstances for the misconduct. 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories 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. a. Paragraph 3-7a states 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. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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) AR20190003669 2 1