ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 September 2019 DOCKET NUMBER: AR20190004171 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement 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: a. He has been trying to get help for 35 years. He was discharged for unsatisfactory performance in 1984 without an explanation. He hadn’t been in the military that long at that point, but he passed physical training (PT) and weapons qualification. It is a decision made by his commanding officer during an ordeal with the local county. He made a mistake and was punished for it. b. It’s now been 35 years and he has been a perfect citizen. His injustice kept him from reenlisting and rendered him unable to receive medical benefits, housing assistance, and many other benefits that could help him. c. Before entering the military, he was a young student looking for direction and watching his mom and siblings struggle with everyday bills. He did his best going through high school, keep up his grades and graduating with his class in 1979. After graduation he worked for many small businesses, trying to get a foot in the door by taking odd jobs. He then met the president of the Residential Management Corporation, who befriended him and gave him the opportunity to attend College in 1979 and University in 1980, majoring in Computer Science. d. While there he enrolled in Reserve Officer Training Corps (ROTC) and did well until he had financial difficulties continuing his education. ROTC is the reason he joined the military and not because of peer or family pressure. He wanted to follow in the footsteps of his father, who retired as an Airman from the U.S. Air Force. Just knowing he would be allowed the opportunity to gain the experience of a career trade and a full college educations if he joined the military is what had its greatest influence on him, so he joined the Army with his cousin in 1982. e. He feels his discharge was unfair and unjust because he was discharged for unsatisfactory performance and poor conduct around the time he was incarcerated and had no communication from anyone from the Army legal department or from anyone in his command. He just doesn’t remember discussing his discharge once he was in jail or when he was released. The reason for his incarceration was completely his fault. He was charged with writing a check for $74.00 that the bank did not cover. On the day he was arrested, his company commander informed him that felony charges were being brought against him and he was held in the commander’s office under guard by the day watchman until the local police arrived and took him away in handcuffs to the court. f. Once in the courtroom, he had no idea what was going to happen. The judge asked what his plea in the case was and he thought by pleading guilty, he would be able to pay off the $74.00 check, the fines, the court costs, and it would be over. Without knowledge of court proceedings or a court appointed lawyer or someone from the Army that could represent him in court, he pled guilty to the charge, thinking he was doing the right thing. Unfortunately, he ended up service a 1-month sentence in Hardin County jail. It was truly his intention to be a good Soldier with a good service record and in this situation he needed representation, but he guesses in this situation he was just expendable and his command didn’t want to hear from him. He had never before been in trouble or committed any acts that could result in prison, so he pled guilty without knowledge of court proceedings. If he had adequate representation, he truly believes his outcome would have been different. g. His service record during his first year in the Army was outstanding. He met new friends and worked in the motor pool, woke up at 4 a.m. for PT, felt the agony of battalion runs, pulled guard duty, kept his barracks room clean for inspection, took orders, and stood at attention, saluting ranking officials requiring respect. He stayed positive, treating everyone with the same respect and worked well with his fellow Soldiers providing maintenance to vehicles in the motor pool. He can honestly say he served honorably and performed at or above military standards. h. He was not aware that poor conduct was an issue for him. He had every intention of being a great Soldier, working with others, following direction and listening carefully too what was asked of him. In no way did he disrespect or show anyone that his conduct was poor. If by “poor conduct” someone is referring to the event where he was incarcerated, he doesn’t believe this justified him being accused of having poor conduct. He did not receive anything stating he was absent without leave (AWOL). He admits he was away from his unit for 30 days, but he was not AWOL as he tried to reach out to contact anyone in his unit, but no one came to his court proceedings or showed up at the jail with any information. The Army failed to properly inform him of his rights and he didn’t understand them. He never received any disciplinary action from the Army and at no time was it discussed. He was not informed of the type of discharge he would receive or its consequences. i. His discharge affected him mentally more than he thought it would. His plan was to make a career with the military, but after his discharge returning home to be with family and friends was the only option he had. The first few years were hard locating work and making ends meets. From 1985 to 1990 he did nothing but construction work. In 1991, he attended Computer Learning center and graduated with honors, then began working as a network, copier, and printer technician for 13 years with American Tele- management Incorporated. In 1991 he was married to a lovely woman. j. In 1995, he was told he had end stage renal disease and required dialysis 3 times per week. In 1996, he received a kidney transplant from his sister, which allowed him to work until 2002. This was an emotional ordeal for him, knowing that he lost his kidney and his sister offered him one of hers out of the goodness of her heart. Now he is back on dialysis, needing more help than he needed before. In the meantime, he returned to school and was awarded a diploma in automotive technology in 2008 and in 2013 he received his Associate of Arts degree in Criminal Justice. Now he can’t work simply because his illness is getting worse and he lost his apartment due to the rising price of housing. He just can’t afford the market these days and at present is homeless, having reached out to several agencies for housing. k. He has been a great citizen to his community for the last 35 years. He has never been arrested outside of the one time while in the military, although he had some minor traffic violations, they were nothing serious. He wants to be able to enjoy the benefits the military has to offer such as medical, dental, prescription drugs, vision and housing assistance. His goals for himself are to buy a home and get proper health care; these are the reasons he is requesting an upgrade of his discharge. 3. The applicant enlisted in the Regular Army on 3 September 1982. 4. Multiple DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), show he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on the following occasions for the following offenses: * 7 July 1983, for failing to go at the time prescribed to his appointed place of duty on 15 June 1983 * 20 January 1984, for being disrespectful in language to his superior noncommissioned officer on 19 December 1983, by telling him, “Well, go right on fat as_...I called you fat as_... Fu___ you…respect this big a_ motherf_____” and for assaulting Specialist on 19 December 1983 * 9 March 1984, failing to go at the time prescribed to his appointed place of duty at guard mount on 4 March 1984 * 27 July 1984, for failing to go to his appointed place of duty on 16 July 1984 5. A DA Form 4187 (Personnel Action), dated 18 April 1984, shows he was flagged to block his promotion to private first class due to his individual duty performance not warranting promotion consideration at that time. 6. His records contain numerous DA Forms 3975 (Military Police Report) wherein he was cited for the following offenses on the following dates: * 7 January 1984, driving without a valid operator’s license * 6 June 1984, improper/expired State vehicle registration * 25 July 1984, released to civilian authorities based on warrant for arrest for theft by deception 7. His records contain multiple Dishonored Check Notifications from the Army and Air Force Exchange Service (AAFES) to the applicant’s commander indicating he wrote a total of seven dishonored checks to AAFES between June and July 1984. 8. A DA Form 3822-R (Report of Mental Status Evaluation), dated 12 July 1984 shows he received a mental status evaluation on the date of the form for the purpose of discharge. He was evaluated to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. He was psychiatrically cleared to participate in any administrative action deemed appropriate by his command. 9. A DA Form 4187, dated 26 July 1984, shows his duty status was changed from “Present for Duty” to “Confined by Civil Authorities” on 25 July 1984. 10. On 9 August 1984, he was notified of his immediate commander’s recommendation for his administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance. a. His commander stated the applicant’s job performance was not satisfactory, he failed to maintain his uniforms and appearance, lacked motivation, and wrote several bad checks. He was repeatedly counseled by his chain of command as well as by the Alcohol and Drug Abuse Prevention and Control Program with no improvement, therefore his commander requested the waiver of rehabilitative transfer and recommended the applicant receive a general discharge under honorable conditions. b. The applicant was advised of his rights to consult with counsel, submit statements in his behalf, and obtain copies of documents sent to the separation authority. 11. He acknowledged receipt of the notification on 9 August 1984 and acknowledged being aware that his the elimination action were approved, he could possibly be discharged from the Army with a general discharge and that he may expect to encounter substantial prejudice n civilian life if he were issued a general discharge under honorable conditions. He stated he understood all of his rights and requested consulting counsel. He did not submit statements in his own behalf. 12. On 13 August 1984, the approval authority directed the applicant’s discharge with the issuance of a General Discharge Certificate. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, on 17 August 1984, due to unsatisfactory performance and his service was characterized as general, under honorable conditions. He completed 1 year, 10 months and 24 days of net active service this period, with lost time from 25 July 1984 through 15 August 1984. 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 agreed that the pattern of misconduct and poor performance documented in the applicant's service record support the characterization of service he received. 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. 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. 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains policy and outlines procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. b. Paragraph 3-7a provides that 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. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20190004171 7 1