IN THE CASE OF: BOARD DATE: 21 January 2020 DOCKET NUMBER: AR20190004643 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. 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), dated 5 March 2017 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 23 February 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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. He felt persecuted, harassed and disrespected by his noncommissioned officer in charge (NCOIC) while he was in Germany. The letters from other Soldiers within his section (part of service record) are proof he was treated this way. He believes this is why he suffers from post-traumatic stress disorder (PTSD) and has a disability rating of 100 percent (%) from the VA. Based upon these circumstances, he was wrongfully discharged. b. In an attached self-authored statement, he notes that his dreams of retiring with many years of service were shattered by his NCOIC. His NCOIC always found a way to make him look like a bad Soldier, which put him under an unbearable amount of stress. Although he hated waking up in the morning, he did his job to the best of his ability. He was attacked, verbally abused, and threatened on a daily basis. He lost his wife because of this stress. At some point, he lost himself and didn't care to get his discharge changed. He has now come to a point in his life where he realizes he has rights, and it is never too late to fight for what is right. Although his character has been tested, he has tried to be an exemplary citizen. He is embarrassed to tell his family about the characterization of his discharge. He hopes the Board can make this right and give him back what was taken away from him many years ago. 3. The applicant enlisted in the Regular Army on 26 June 1992. Following the completion of his initial entry training, he was assigned to Kaiserslautern, Germany. 4. The applicant accepted non-judicial punishment (NJP) on 8 April 1993, under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), for stealing from the Base Exchange, on or about 13 March 1993. 5. The applicant was suspected of spousal abuse, with a possible history of unreported physical violence, on or around 26 January 1994. The Landstuhl Army Regional Medical Center (LARMC) Family Advocacy Case Management Team (FACMT) conducted an assessment on or around 9 February 1994, and determined the allegations to be substantiated. The FACMT recommended he attend "Men's group" and his wife attend counseling until Early Return of Dependents (ERD) could be accomplished. 6. The applicant's NCOIC requested Article 15 procedures and separation action under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 (Unsatisfactory Performance) or Chapter 14 (Misconduct) be implemented in response to the applicant's repeated unsatisfactory performance. The NCOIC stated the applicant had been under the supervision of four NCOs and had failed to overcome his problems. In a memorandum dated, 15 Mar 1994, the NCOIC provides the following list of counseling statements conducted in an effort towards rehabilitation: * Failure to perform directed duties, 25-26 January 1993 * Failure to notify supervisor before leaving work, 4 February 1993 * Failure to follow instructions; cited for two traffic tickets, 19 March 1993 * Possible penalties of shoplifting; failure to be at appointed place at appointed time, 22 March 1993 * Failure to be at appointed place at appointed time, 23 March 1993 * Article 15 for shoplifting, April 1993 * Disrespect and insubordination, 20 April 1993 * Receiving unauthorized pay since April 1993 (failure to repair), 30 July 1993 * Failure to prepare vehicle dispatch and maintenance of vehicle, 15 October 1993 * Parking in unauthorized parking place, November 1993 * Failure to comply with financial obligation, 7 January 1994 * Failure to complete assigned task, 4 February 1994 * Failure to use chain of command, 16 February 1994 * Failure to follow instructions and comply, 14 March 1994 7. The applicant was barred from reenlistment on 11 April 1994. 8. The applicant was notified on 31 August 1994 of his immediate commander’s intent to initiate separation actions against him under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, by reason of his pattern of misconduct. The commander cited the applicant's failure to be at his appointed place of duty, failure to obey direct orders from an NCO, issuance of worthless checks on several occasions, disrespect to an NCO and being derelict in his duties. The applicant acknowledged receipt of the proposed separation action on 31 August 1994. 9. The applicant consulted with legal counsel on or about 31 August 1994. a. He was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. b. He was advised he could submit any statements he desired in his own behalf. In a provided statement, he noted he was glad to be a medic in the best Air Defense Artillery Battalion. Although he made many mistakes, they were all learning experiences. After two years in the Army, he had done a lot of growing up. It takes some people longer to adjust from civilian life to military life. He does not believe he should be separated for patterns of misconduct. He did not do wrong on purpose and has constantly made an effort to improve himself. He felt he was blamed for things when they weren't his fault, and he had no support from his section. He spoke with an NCO in another company about the harassment he felt he was receiving. The NCO tried to speak with his squad leader; however, the NCO was told not to worry about what happened at the Aid Station. Afterwards, his leadership informed him not to tell others what was going on at the Aid Station. He believes he was discriminated against and singled out, perhaps because he spoke Spanish or because of his race. He lost focus. His relationship with his wife deteriorated and he blames his chain of command for their separation. He was not given the same awards as others for equal work. He may have made mistakes and shown poor judgment but all he ever received was counseling statements. No one took the time to teach him to do the right thing. He is proud to have served his country and believes he could be the best Soldier and NCO if given a fair chance. c. He provided five third party letters of support from members of his section. The authors all acknowledged that he had made some mistakes, but after a period of adjustment, had come a long way. He was a hard worker and showed a desire to improve. They also suggested he was not treated fairly by leadership. Other Soldiers who made similar mistakes were not treated or judged as harshly. 10. The applicant's commander formally recommended his separation on 31 August 1994, under the provisions of Army Regulation 635-200, Chapter 14, by reason of his pattern of misconduct. 11. Consistent with the chain of command’s recommendation, the separation authority approved the applicant's discharge on 8 September 1994, under the provisions of Army Regulation 635-200, paragraph 14-12(b), by reason of pattern of misconduct, and directed that he be issued a DD Form 257A (General Discharge Certificate). 12. The applicant was discharged on 3 October 1994. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct." His service was characterized as under honorable conditions (general). 13. The applicant's available record is void of evidence that substantiates his contentions or diagnosis vis-à-vis PTSD and any VA-recognized, service-connected status. 14. The Board should consider the applicant's overall service record and provided statement in accordance with the published equity, injustice, or clemency determination guidance. 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, the frequency and nature of his misconduct, a bar to reenlistment, the absence of information to show a behavioral health diagnosis, the separation packet with statements of support and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and 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 the applicant received upon separation was 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. 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 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. a. 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. 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. c. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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 on the basis of equity, injustice, or clemency grounds, Boards 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) AR20190004643 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004643 6 ABCMR Record of Proceedings (cont) AR20190004643 5