IN THE CASE OF: BOARD DATE: 30 January 2020 DOCKET NUMBER: AR20190008360 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20160016513 on 6 June 2019. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. Additionally, he requests an appearance before the Board if warranted. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 8 January 2019 and 5 June 2019 * Cover Letter, dated 5 June 2019 * Brief in Support of Application FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160016513 on 6 June 2019. 2. The applicant states his separation was unjust because personal biases formed the basis for initiating his separation proceedings. Separation under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5 and current changes to Chapter 13 would have allowed for a more appropriate and favorable separation for unsatisfactory performance. He was not provided an opportunity for rehabilitative transfer and a mental health examination, as required by Army Regulation 635-200, Chapter 13, was not conducted. These errors and injustices were not discovered until he sought help from a legal clinic. 3. The applicant's counsel states: a. The applicant was singled out for unnecessarily harsh punishment and was not given the opportunity to rehabilitate. The command structure in the applicant's unit utilized an unjust system to single out Soldiers for unfair scrutiny, punishment and separation. His minor offenses were singled out for unnecessarily harsh punishment while other Soldiers serving in the same unit with similar infractions were discharged more favorably. b. He was unaware of the procedures or ability to argue his discharge and only recently discussed his situation with the Veterans Advocacy Program. The applicant did not discover he had the option to file for review of his discharge and correct his record until August of 2016, when he began working with the Veterans Advocacy Program. c. Army Regulations have undergone numerous revisions, yielding more appropriate avenues for separation in the modern Army. Current regulations would have allowed the applicant to be separated for unsatisfactory performance, characterized as "General under Honorable Conditions." d. The commander unjustly switched the applicant's separation from Chapter 5 to Chapter 13 under Army Regulation 635-200, which resulted in a lower characterization of service. The record shows the commander retracted the Chapter 5, which would have resulted in a more favorable discharge, and substituted the Chapter 13 for unjust reasons rather than the policy prescribed by Army Regulation 635-200. The commander indicated that he referred the applicant for mental health evaluations twice as part of the Chapter 5 process. Records show no such treatment. The commander also stated he decided that due to the applicant's influence on the command, he determined a Chapter 13 was necessary. The commander felt the applicant did not deserve an honorable discharge. e. The applicant was denied the possibility of rehabilitative transfer. Army commanders were required to ensure that before taking separation action against an individual, adequate counseling and rehabilitation measures had been taken. The regulation required at least one rehabilitative reassignment "with a minimum of two months of duty in each unit" or a "permanent change of station transfer (PCS) when it is essential to provide a change in commanders, associates, and living or working conditions as a mean of rehabilitating an individual. Such rehabilitative action may be waived when a general court-martial convening authority determines that further duty of the individual will create serious disciplinary problems or a hazard to the military mission or the individual or that the individual is obviously resisting all attempts to be rehabilitated or that rehabilitation will not produce the quality Soldier acceptable in the baseline force." f. The applicant was denied a mental health examination prior to separation proceedings as required by Army Regulation 635-200. These regulations are in place to screen for mental disorders and issues that may warrant separation under alternative chapters. His service record is conspicuously absent of any genuine evaluation of his mental health. The Army's failure to render such care, prior to separation, contributed to the applicant's separation under Chapter 13 and receipt of an "Undesirable" service characterization. g. In summary, the procedures used to separate the applicant under Army Regulation 635-200, Chapter 13, were biased and prejudicial to him. They were conducted after the applicant had accepted his commander's offer of a Chapter 5 separation. Had this occurred in modern times, he would have been separated with a more positive character of service. The Army did not follow its own regulations; the applicant was not given a rehabilitative transfer nor an appropriate mental status examination. These injustices and errors demonstrate the applicant's separation from the Army was improperly conducted. 4. Included in counsel's legal brief (Exhibit I), dated 4 June 2018, the applicant states: a. The day before his hearing to determine his discharge, his main character witness was sent to Hill 754, where individuals sometimes went to perform their duties. On a daily basis, a driver would pick these individuals up. On the day before his hearing, he believes his noncommissioned officer in charge (NCOIC) refused to allow the driver to pick up his main character witness in an attempt to prevent the witness from attending the hearing. One of his other witnesses was held in an adjoining room and never called to testify on the applicant's behalf. b. During the hearing, the Judge Advocate General (JAG) lawyer told him if he felt uncomfortable with any of the panel members he should alert him and he would stop the proceedings and address the applicant's concerns. When the applicant mentioned his concerns, he was told to wait and it would be addressed after the hearing. After the hearing, he asked when the JAG lawyer was going to speak up about his concerns. The JAG lawyer told him not to worry and after six months his discharge would automatically revert to an Honorable Discharge under General Conditions, and he should wait until he returns to the United States to deal with it. c. Over the years, he has continued to maintain a living. He earned his Associates Degree in 2012. He believes had he been afforded an upgrade, he would have been able to get his Baccalaureate and possibly a Master's Degree. He would have had the opportunity to earn a much better living. He has never been incarcerated, addicted to drugs, does not smoke cigarettes or marijuana, drink liquor or alcohol, or use any type of mind altering drug. d. He is a proud American, who at every opportunity will defend this country and the ideals espoused by our Constitution. He is proud to have served in the military, wished to have made it his career, to serve with distinction, and at the very least to have finished his initial enlistment and be given the opportunity to consider reenlisting. All of these things were never afforded to him. 5. The applicant enlisted in the Regular Army on 28 February 1975. Upon the completion of his initial entry training, he was assigned to Camp Casey, Korea. 6. The applicant received non-judicial punishment (NJP), under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), on the following occasions: * on 19 January 1976, for failure to go to his appointed place of duty, on or about 7 January 1976, and for failure to obey a lawful order from an NCO, on or about 8 January 1976 * on 5 February 1976, for absenting himself from his appointed place of duty, on or about 3 February 1976 * on 27 February 1976, for absenting himself from his appointed place of duty on multiple occasions, on or about 11 February, 14 February, and 15 February 1976, and for failure to obey a lawful order, on or about 21 February 1976 * on 2 March 1976, for absenting himself from his place of duty, on or about 2 March 1976 7. The applicant was notified on 6 February 1976 of his immediate commander’s intent to initiate separation actions against him under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program). The applicant acknowledged receipt on 11 February 1976. 8. The applicant's immediate commander recommended a Bar to Reenlistment on 11 February 1976. 9. The applicant was notified on 1 March 1976 of his immediate commander’s intent to initiate separation actions against him under the provisions of Army Regulation 635-200, Chapter 13, by reason of unfitness. The applicant acknowledged receipt on 2 March 1976. 10. Subsequently, the applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-5a (1), by reason of frequent incidents of a discreditable nature with civil or military authorities. The commander cited the following: * since being assigned to the unit, the Soldier had numerous UCMJ violations * he received two company level Article 15 (company grade) * he was pending a battalion level Article 15 (field grade) * he had been counseled on multiple occasions with no favorable results 11. The applicant consulted with counsel on 8 March 1976. a. He was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, and its effect; of the rights available to him; and of the effect of any action taken by him in waiving his rights. He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if an undesirable discharge was issued to him. b. He was advised he could submit any statements he desired in his behalf. He elected not to make a statement. He elected consideration of his case by a board of officers with a personal appearance and representation by counsel. 12. The applicant underwent a separation physical on 9 March 1976. The relevant Standard Forms (SF) 88 (Report of Medical Evaluation) and 93 (Report of Medical History) note that he was in fair health and medically qualified for separation under Chapter 13. 13. The applicant underwent a mental status evaluation on 9 March 1976. The relevant DA Form 3822-R (Report of Mental Status Evaluation) notes he had the mental capacity to understand and participate in the proceedings, was mentally responsible, able to distinguish right from wrong and adhere to the right. There was no indication of significant mental illness, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. 14. The applicant's chain of command recommended his appearance before a board of officers to determine his possible discharge under the provisions of Army Regulation 635-200, Chapter 13. 15. The applicant underwent a psychiatric evaluation on 31 March 1976. The relevant report notes there was no evidence of mental disease, defect or derangement sufficient to warrant medical disposition. He was cleared for any appropriate administrative action. Additionally, the psychiatrist felt the applicant could adjust satisfactorily within the military system if accorded the opportunity to do so and a rehabilitative transfer should be afforded. 16. A board of officers was directed by the convening authority on 3 April 1976. 17. The applicant appeared before a board of officers on 6 May 1976. After careful consideration of the evidence provided, the board determined the following: * the applicant was undesirable for further retention because of frequent incidents of a discreditable nature with military authorities * his rehabilitation was not deemed possible * the board recommended the applicant be separated from service due to misconduct and that he be issued an undesirable discharge 18. The general court martial convening authority approved the recommendations of the board of officers on 9 June 1976. He waived any further counseling and rehabilitation and directed the applicant be separated under the provisions of Army Regulation 635-200, Chapter 13, by reason of misconduct. He further directed the applicant be issued a DD Form 258A (Undesirable Discharge Certificate). 19. The applicant was discharged on 21 June 1976, under the provisions of Army Regulation 635-200, para 13-5a (1). The DD Form 214 (Report of Separation from Active Duty) he was issued confirms his service was characterized as UOTHC and his separation program designator (SPD) code was "JBL" (Pattern of Discreditable Incidents). 20. The Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade on 8 September 1982. 21. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 6 June 2019, determined he was properly discharged, and denied his request for relief. 22. The Board should consider the applicant's 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, appearance before a board of officers and the reason for his separation. The Board considered the statements describing the applicant’s post-service accomplishments and the type of misconduct that led to his discharge. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was too harsh and that an upgrade was required as a matter of clemency. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20160016513 on 6 June 2019 AR. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 21 June 1976 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” vice “Under other than honorable conditions “. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to further upgrade of the applicant’s discharge to honorable or a personal appearance. 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, U.S. Code (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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. 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. The Expeditious Discharge Program (EDP) (Chapter 5) provided that an individual who had completed at least six months, but less than 36 months of active duty, and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he could not or would not meet acceptable standards could be separated. Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel. d. Chapter 13 established policy and prescribed procedures for separating Soldiers for unfitness or unsuitability. Paragraph 13-5a (Unfitness) provided, in pertinent part, that an individual would be subject to separation by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts. This chapter further provided that: (1) An individual separated by reason of unfitness would be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual was awarded a personal decoration or if warranted by the particular circumstances in his case. (2) When an individual was to be discharged as unfit and issued an undesirable discharge, the convening authority would direct his immediate reduction to the lowest enlisted grade. 3. Army Regulation 635-200, effective 1 October 1982, set forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation provided for separation due to unsatisfactory performance when in the commander’s judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions. 4. 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) AR20190008360 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190008360 8 ABCMR Record of Proceedings (cont) AR20190008360 7