ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Lauren BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20190004166 APPLICANT REQUESTS: in effect: • removal of all records of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and court-martial convictions from his Official Military Personnel File (OMPF) • voidance of his honorable discharge • correction of his records to show he completed 20 years of active duty service with – • progressive promotions from the grade of E-4 • associated back pay and allowances 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 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) 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: a. All records of nonjudicial punishment under the provisions of Article 15, UCMJ, and court-martial convictions should be removed from his OMPF. b. He should be paid for the E-4 rank he lost as a result of his nonjudicial punishment through his separation on 21 September 1971. c. His discharge should be vacated and he should be paid for the 20-year career he would have completed with progressive promotions and pay increases. d. The air gun injection spread his hepatitis C, which caused fatigue and an attitude change. The use of air gun injectors for immunizations was halted in 1999 due to disease transfer. e. He was granted a discharge upgrade to fully honorable on 8 December 2018. 3. The applicant provided no medical records. 4. The applicant's records show he enlisted in the Regular Army on 24 November 1969. He successfully completed basic combat training and advanced individual training at Fort Dix, NJ. Upon completion of training, he was awarded military occupational specialty 36C (Lineman). 5. His DA Form 20 (Enlisted Qualification Record) shows he was advanced to the rank/grade of specialist four/E-4 effective 15 November 1970 and this was the highest rank/grade he attained while serving on active duty. 6. His records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15, UCMJ, as follows: a. on 21 December 1970, for being disrespectful toward a superior commissioned officer on or about 21 December 1970. His punishment included reduction to the rank/grade of private first class/E-3; b. on 16 February 1971, for being absent from his unit without authority from on or about 9 February 1971 through on or about 11 February 1971. His punishment included reduction to the rank/grade of private/E-2 (suspended for a period of 30 days). On 24 February 1971, his commander vacated the suspension of reduction to the rank/grade of private/E-2; and c. on 19 March 1971, for failing to report to his appointed place of duty (work call formation) on or about 15 March 1971 and on or about 16 March 1971, and for failing to obey a lawful order from a noncommissioned officer on or about 16 March 1971. His punishment included reduction to the rank/grade of private/E- 1. 7. On 9 August 1971, his company commander notified him of his intent to initiate action to separate him from military service for reasons of unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He was advised of his rights to: • present his case to a board of officers • submit statements in his own behalf • be represented by counsel • waive his rights in writing 8. On 9 August 1971, the applicant's company commander recommended his elimination by reason of unsuitability under the provisions of Army Regulation 635- 212. He stated the applicant has been a discipline problem continuously for the last year. His uncooperativeness, laziness, and general inefficiency have seriously hindered the accomplishment of his platoon's mission. He only does what he wants to do and fails to accept orders from noncommissioned officers and commissioned officers, which demonstrates his unfitness for military service. He has no concept of responsibility, consideration for others, and self-control. His detrimental influence upon the unit could no longer be tolerated. His rank/grade is shown as private two/E-2. 9. On 19 August 1971, the applicant completed an election of rights wherein he stated he had been advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212. His rank/grade is shown as private two/E-2. He waived the following rights: • consideration of his case by a board of officers • personal appearance before a board of officers • to submit a statements in his own behalf • representation by counsel 10. On 13 September 1971, the separation authority approved the applicant's separation under general conditions for unsuitability under the provisions of Army Regulation 635-212 and directed issuance of a General Discharge Certificate. His rank/grade is shown as private two/E-2. 11. Special Orders Number 264, Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, dated 21 September 1971, discharged him effective 21 September 1971. His rank/grade is shown as private/E-1. His type of discharge is shown as general. His reason for separation is shown as separation program number (SPN) 264 (unsuitability, character and behavioral disorders). 12. The applicant’s service medical records were not available for review. 13. He was discharged under honorable conditions on 21 September 1971. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at the time of his separation shows in: • item 5a (Grade, Rate, or Rank) – private first class • item 5b (Pay Grade) – E-3 • item 6 (Date of Rank) – 19 March 1971 • item 11a (Type of Transfer or Discharge) – discharge • item 11c (Reason and Authority) – Army Regulation 635-212, SPN 264 • item 13a (Character of Service) – under honorable conditions • item 13b (Type of Certificate Issued) – DD Form 257A (General Discharge Certificate) • item 15 (Reenlistment Code) – RE 3 • item 22a(1) (Net Service This Period) – 1 year, 9 months, and 28 days • item 22b (Total Active Service) – 1 year, 9 months, and 28 days 14. On 12 November 2009, the ABCMR upgraded his discharge to honorable based on Department of Defense Instruction 1332.28 that provided policy for review of discharges or dismissals based on personality disorders (formerly characterized as character and behavior disorders). 15. On 11 December 2009, the Army Review Boards Agency Support Division notified him that his records were corrected to show his discharge as honorable and issued him a new DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 256A (Honorable Discharge Certificate). His rank/grade is shown as private first class/E-3. 16. On 12 July 2018, he petitioned the Army Discharge Review Board to have his discharge upgraded to honorable. 17. On 8 December 2018, the Army Review Boards Agency Case Management Division notified him that he was granted the requested relief in ABCMR Docket Number AR20090009929, dated 12 November 2009, and enclosed copies of the new DD Form 214 and Honorable Discharge Certificate. 18. There is no evidence showing he performed any active duty service subsequent to his discharge on 21 September 1971. 19. There is no statutory or regulatory provision for voiding a properly executed discharge. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and the character of service he received. The Board found no evidence of medical records and the applicant provided none in support of his claim regarding air gun injections. The Board found no evidence in support of error or injustice in the applicant’s record of nonjudicial punishment and the applicant provide no evidence in support of that portion of his request. The Board considered the applicant’s record of promotions and reductions and found no error or injustice in his rank at the time of separation. The Board considered the applicant’s request to the ADRB for a discharge upgrade (to Honorable) after the ABCMR had upgraded his separation to Honorable in 2009. The Board found no evidence that the applicant was improperly separated and no evidence of active duty service beyond 21 September 1971. Based on a preponderance of evidence, the Board found no evidence of error or injustice necessitating a correction of the applicant’s records. 2. After reviewing the application and all supporting documents, the Board found the 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. X 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), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice. a. Paragraph 3-15d(1) (Retention and Disposition of DA Forms 2627, 2627-1 and 2627-2) (Military Personnel Records Jacket (MPRJ), U.S. Army (DA Form 201)) provided that records of punishment under Article 15 would be withdrawn from the MPRJ and destroyed upon the occurrence of any of the following events: • the individual is separated from the Army • all punishments are set aside • 2 years have expired since imposition of punishment b. In the case of enlisted persons E-1 to E-6, the officer could direct that the record of punishment be filed and administered in a manner that would preclude its availability to persons considering the individual for promotion. A statement reflecting any such direction would be made in section V of the DA Form 2627-1, as appropriate. This does not apply to documents placed in the Official Military Personnel File (OMPF). 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was revised on 1 December 1976 following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army memorandum, dated 14 January 1977, and better known as the "Brotzman Memorandum," was promulgated. It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrades of discharges based on personality disorders. 4. The "Brotzman Memorandum" required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. A second memorandum, dated 8 February 1978, and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 5. Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior and disorder, apathy, enuresis, and alcoholism. Members separated under these provisions could receive either an honorable of general discharge. In paragraph 27 (Reentry into the Army) it precluded reentry into the Army unless authorized by appropriate authority, the DD Form 214 of all individuals, with the exception of those referred to in paragraph 5a, discharged under this regulation will be coded "RE-3," which provides that Soldiers are recommended for reenlistment upon removal of disqualifying factor. 6. Army Regulation 601-210 (Regular Army Enlistment Program), in effect at the time, established the qualifications for enlistment and reenlistment of men and women in the Regular Army and prescribe procedures by which applicants were processed and enlisted, reenlisted, or rejected at recruiting stations, recruiting main stations, Army installations, and oversea commands. a. Table 2-6 (Applicants Ineligible to Enlist – No Waivers Considered) shows those previously separated for unfitness or unsuitability under (Army Regulation 635-212) are eligible to reenlist unless they are prior-service females. b. Table 2-7 (Nonwaiverable Disqualifying Separations) defines reenlistment eligibility code RE-3 as recommended for reenlistment except for disqualifying factor. c. Table 3-1 (Waiver Approval Authorities – Basic Eligibility Criteria) shows what an applicant needs to request a waiver to reenlist when discharged under unsuitability. Specifically, the requests for waiver: • may not be submitted until a 2-year period has elapsed since discharge • must complete DA Form 3072-1 (Request for Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army for Personnel Applying from Civilian Life) • letters of recommendation • letters of reference from employees since separated from the Army 7. Department of Defense Instruction 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, U.S. Code, section 1553. This guidance applies to the Office of the Secretary of Defense and all the Military Departments. ABCMR Record of Proceedings (continued) AR20190004166 ABCMR Record of Proceedings (continued) AR20190004166 2 8 1