ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 October DOCKET NUMBER: AR20190009483 APPLICANT REQUESTS: An upgrade of his character of service from under other than honorable conditions to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States) .Letter from Counsel .Petitioner’s Brief .Affidavits (x6) .Trial Defense Counsel Chapter 10 Instructions .Orders (x2) .Medical Record .Progress Note .DA Form 4187 (Personnel Action) .DD Form 214 (Certificate of Release or Discharge from Active Duty) .Death Certificate FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records (ABCMR) conducted a substantive review of this case and determinedit is in the interest of justice to excuse the applicant's failure to timely file. 2.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR2003091660 on 28 August 2003. 3.The applicant states through counsel enclosed is the applicant’s petition. Uponreview of the enclosed supporting documents and the petition, we are confident that youwill award relief as requested. Please do not hesitate to contact us with any questionsor concerns on this matter a name, email address, and office number are provided. 4.On 23 June 1978, the applicant enlisted in the Regular Army for 4 years. He heldmilitary occupational specialty (MOS) 11B (Infantryman). He was assigned to Germanyon 26 October 1978 with duties in his MOS. 5.The applicant's record does not contain his complete separation packet or all of thefacts and circumstances surrounding the discharge process. However, it does contain: a.Personnel Qualification Record showing he was absent without leave (AWOL) onthree occasions from: .1 to 10 September 1979 .29 December 1979 to 30 March 1980 .21 April to 6 August 1980 b.The Personnel Qualification Record also shows he was dropped from Army rollson 22 April 1980 and on 7 August 1980, he was returned to military control at the U.S. Army Personnel Control Facility, Fort Bragg, NC, on 24 October 1980. c.Personnel Action, dated 6 December 1979, showing the applicant requested ahardship discharge, because of his wife’s mental condition. d.DD Form 214 that was prepared at the time of separation confirming he wasdischarged, under the provisions of chapter 10, Army Regulation 635-200, on 24 October 1980, for conduct triable by court-martial, with an under other than honorable conditions discharge, in pay grade E-1. He had completed 1 year, 9 months, and 2 days of active military service. This DD Form 214 also shows the above three periods of lost time. e.Orders 204-45, Headquarters XVIII Airborne Corps, Fort Bragg, NC, dated 21 October 1980, confirming the applicant was discharged, effective 24 October 1980. f.ABCMR Memorandum of Record, dated 28 August 2003. 6.The applicant provides:a.Medical Record confirming Ms. M, his spouse, at age 18 was admitted to the emergency room on 22 July 1979 and she was discharged on 28 July 1979.She became progressively deeply comatose and was admitted to the Maximum Care Unit in a deep coma. Meager history available at the time of admission found her to be the wife of a serviceman in Germany residing with her in-laws in Raleigh NC who had two children, a very broken home life before that and apparently she had been to the emergency room at both “Wake” and “Rex” repeatedly in recent weeks with various complaints including dizziness and abdominal pain and the physician had concluded that she was manipulating them in trying to get her husband back home. Additionally, this document shows: (1)She gradually responded. While she did not admit taking the pills to thedoctor she discussed it with her husband who arrived from Germany on about the second or third day of her hospitalization. In addition she had a known sickle cell trait. Her evaluation included exhaustive check for causes of coma and the barbiturate level proved to be the only positive result. A CAT scan was again normal, one having been done in June also following a head injury. (2)She was seen for a psychiatric evaluation and it was noted that she had anunstable personality and that she had achieved her goal and was probably no longer a threat to herself. She was advised to seek further evaluation at the Mental Health Clinic, Fort Bragg and that she should seek gynecological care there. It was believed that her husband was being reassigned to Bragg at this time. (3)Her final diagnosis was: .coma due to barbiturate over dosage, and sickle cell trait .Thrombocytopenia due to barbiturates .Hematuria, either due to Foley catheterization or sickle cell trait b.Progress Record from a civilian hospital dated 26 July 1979, stating it wasbelieved the applicant’s spouse was being manipulative to get her husband back from Germany. They were not sure whether she understood the gravity of her actions or her illness. c.Five Affidavits from:(1)Mr. K stating he has been involved with the national Association of Black Veterans since 2008 and has served as the North Carolina State Command, Commander of Region VIII and he has known the applicant since 2008. The applicant has served as the Commander, of a NABVETS Chapter in North Carolina, which is one of the oldest chapters in North Carolina. The applicant is very honest and works very hard serving his fellow veterans and his community. The applicant can always be depended upon to complete all requested assignments. (2) Mr. M stating the applicant lives in Wilmington, NC and he is a disabled veteran. He has known the applicant for 59 years. He has an excellent work ethic and he has worked tirelessly for NABVETS of Wilmington as the commander on a voluntary basis for 10 years. He has done an outstanding job for veterans returning home. His integrity is noted by keeping all of the information he receives confidential. He is a deacon in a ministry that he and his wife founded in 2008. They serve diligently through outreach in the community through their food bank and ministries dedicated to serve all men and women in need. His overall character is outstanding. (3) Mr. M, the applicant’s brother stating he is a member of the North Carolina NABVETS and the American Legion. He also served in the military for 12 years. His brother is currently on disability due to health problems. He talks to the applicant every other day over the telephone. The applicant works very hard and he loves helping others. He oversees a food bank for people in need. He has been the president of a NABVETS chapter for about 10 years. He received his Associates Degree in Clergy while disabled. He volunteers at the Veterans Hospital to help with veterans returning home. He is trustworthy and honest. By working with the NABVETS Association he shows his loyalty to or nation’s vets by helping with anything that they need. He is caring, honest trustworthy, and loyal to his country. (4) Mr. K stating he met the applicant in 2007 at the NABVETS and the applicant convinced him to expand a NABVETS chapter to Wilmington. The applicant motivated him with his enthusiasm, integrity, and devotion to duty to move forward with expanding chapters across the State of North Carolina. Since the chapter was started the applicant was voted the commander all but one year. (5) Ms. J stating she has known the applicant since 2001 through his wife. He is a man of very few words, but he speaks words of wisdom. He has a heart for the mentally challenged and hurting wounded veterans. He is a member of NABVETS an organization that helps in assisting veterans of every race, creed and religion. As the Commander, NABVETS, he helps many veterans get approved for veteran’s benefits and the medical treatment that they need. He is dedicated to his family, his church family, and “HOIM Ministries.” He is an ordained Deacon of HOIM and he has a heart for his church family, especially for single mothers. He always says, "I remember how hard it was being a single father raising 2 sons." He and his wife started the church 1st food pantry so that single mothers, the church, and the community would not be without food. He gives away food baskets to the community that wouldn't have Thanksgiving or Christmas dinner otherwise. As a member of HOIM, I work closely with him as the treasurer of the church handling church funds. He is a man of integrity and faithfully pays his tithes monthly on the little income that he receives each month. He always say God will breathe on the little that you have and make it become much. (6) Ms. G stating she also met the applicant in 2001 and the applicant has been a father figure to her and her children. He has provided the support that she needed to ensure that her children were raised with the proper guidance and good morale standards. He is a man of his word and he serves the church and his community. 8.The applicant also provides a Petitioner’s Brief in support of correction of militaryrecord stating: a.This case involves a US Army service member who was unjustly discharged"Under Other than Honorable Conditions," pursuant chapter 10, Army Regulation 635-200.The petitioner has exhausted all administrative remedies under existing law and regulation and requests relief. The Petitioner wishes this petition be reviewed in the interest of equity, fairness, and justice, and that the requested relief be granted. b.The petitioner requests that his DD Form 214, block 24 (Character of Service) becorrected from "under other than honorable conditions" to "general, under honorable conditions." c.By statute Title 10, US Code, section 1552, the Secretary Army is authorized tocorrect errors or remove injustices from any service member's records. Such records include, but are not limited to records regarding discharges, reenlistment codes, disciplinary matters, performance evaluations, selection for promotion, advancement, retirement, dates of service, disability ratings, medals, and various bonuses and benefits. Not only is the Secretary authorized but has an obligation not only to properly determine the nature of any error or injustice, but also to take such corrective action as will appropriately and fully erase such error or compensate such injustice. To conduct this review, the Secretary of the Army has adopted the Code of Federal Regulations (CFR) 32, section 581.3 establishing the Discharge Review Board. When a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its mandate. (1)The Secretary and his boards have an abiding moral sanction to determine,insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief, Roth v. United States. Federal Courts review final decisions made by the ORB under the Administrative Procedures Act (APA), Baker v. Dep't of Army. Congress exercises oversight functions for the ORBs and Congress requires that the Boards properly exercise their function. To help ensure the independence of the ORBs in the exercise of their responsibilities, Congress mandated the Boards have independent legal and medical advisors. To ensure this process is transparent, Congress mandated that the Board disclose virtually all communications with anyone outside the Agency to the petitioner if that communication pertains directly to the petitioner's case or has a material effect on the petitioner's case. The Board does not engage in a "do novo" review of the Petitioner's discharge, Bourg vs. Nitze. (2)The Board will grant a discharge upgrade based upon Propriety or Equity.The Petitioner carries the burden of proof in demonstrating by a preponderance of the evidence the discharge was improper or inequitable. In order to prove inequity or impropriety, the Petitioner must overcome the presumption of regularity in the conduct of governmental affairs. This is a rebuttable presumption, but the burden is on the petitioner to provide substantial credible evidence of a divergence from that regularity. Inequity exists when the discharge was inconsistent with disciplinary standards at the time, or when the quality of the member's service and capability to perform military service make the discharge unfair. Factors for consideration of the quality of service include the service member's ranks, awards and decorations, letters of commendation or reprimand, combat service, acts of merit; length of service, prior military service, courts martial and other forms of discipline, and records of unauthorized absence. (3)The Board is required to "examine the relevant data and articulate asatisfactory explanation for its action including a rational connection between the facts found and the choice made," and the Administrative Procedure Act (APA), "sets forth the full extent of judicial authority to review executive agency action for procedural correctness, FCC v. Fox Television Stations, Incorporated. In addition, the APA requires the Court to hold "unlawful and set aside" any Board action, findings, or conclusions that are, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law", Kreis v. Secretary of Air Force, see 5 USC, section 706(2)(A). (4)The Secretary of the Army has adopted the procedures directed by 32 CFR,section 581.3a which govern the Boards activities. The chair of the Board is directed to ensure that the petitioner receives a full and fair opportunity to be heard, and to certify the record of the proceedings. The Board members are instructed to review all applications that are properly before them to determine the existence of error or injustice, and if persuaded that material error or injustice exists, to direct changes in military records to correct the error. When the statute or governing regulation refers to "errors" they are referring to factual or legal errors that can disadvantage an Army service member. (5)The objective of correction of military records is to examine the propriety andequity of the petitioner's discharge and to effect changes, if necessary. The standard of review and the underlying factors which aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service. (6)Equity considerations include an evaluation of matters such as age,educational level, and aptitude scores; whether the individual met normal military standards of acceptable behavior. Impropriety may be found when a prejudicial error of fact, law, procedure, or discretion occurred. Impropriety may also be found if an expressly retroactive and favorable change in law or policy has been made. d.Statement of Facts: (1)The Petitioner grew up in Garner, NC and was raised primarily by his mother.Petitioner was the sixth of seven siblings and lost his father at the age of 10. He was part of the wrestling team when he attended high school and upon graduation worked as a brick layer and heavy machinery operator. (2)Following in the footsteps of his father and brother, the Petitioner joined theArmy on 23 June 1978 at age of 19. The Petitioner attended basic training at Fort Jackson, SC, and upon graduation was transferred to Fort Benning, GA, where he attended infantry school. There, he would become a light weapons expert in small weapons. Upon completion of Infantry School, the petitioner was transferred to Wiesbaden, Germany. The Petitioner advanced to the pay grade of Private First Class within ten months. (3)On 22 July 1979, the Petitioner received word via Red Cross letter that hiswife had been admitted to REX Hospital in Raleigh, NC. Once he received notice of his wife's condition, he was granted 30 days of emergency leave on 23 July 1979. Before the Petitioner arrived back in the U.S. his wife had slipped into a coma and was moved to the maximum care unit. Upon release of his wife the petitioner was reassigned to Fort Bragg, NC. Then, in December 1979, the Petitioner submitted a request for a hardship discharge due to his wife's mental condition and her inability to care for herself or their two young boys back home. His request was granted approval 6 but was not later noted in his record of release. Reasons that led to this request were the times the Petitioner had taken leave to visit his family. When he would visit he would have to go searching for his children and twice found them at drug dealers' dwellings. The petitioner knew he could not leave the well-being of his children up to his wife given her mental state and drug abuse problem. (4)The Petitioner was discharged pursuant to Chapter 10, Army Regulation 635-200(b). This regulation states "you, the soldier, voluntarily submit a request to theGeneral Court Martial Convening Authority (GCMCA) through your chain of commandrequesting discharge instead of court-martial, and the GCMCA grants your request."The Petitioner was not guilty of any infraction other than needing to be there for hisfamily. His service in the Army prior to his discharge was nothing short of "Honorable." e.Post Service: (1)Since his departure from the U.S. Army, the Petitioner has had multiple jobs including Papa John's Pizza, a self-employed truck driver and most notably he received training and was a successful HVAC repairman. (2)The Petitioner currently oversees a food bank for people in need and hasbeen president of the National Association for Black Veterans, Wilmington, NC chapter (which Petitioner started) for more than 10 years. He earned his associates degree in clergy. The Petitioner also volunteers at the Veteran's Affairs hospital to aid Veterans returning from war. f.Analysis I: (1)The Separation Authority erroneously and unfairly discharged the petitionerwith a characterization of service of under other than honorable conditions. (2)The Separation Authority erroneously and unfairly discharged the Petitionerwith a characterization of service of "Under Other than Honorable Conditions." The Petitioner was discharged under Chapter 10, Army Regulation 635-200(b) stating that "You, the Soldier, voluntarily submit a request to the GCMCA through your chain of command requesting discharge instead of court-martial, and the GCMCA grants your request." (3)There is nothing in the petitioner's service record that demonstrates he (1)used force or violence to produce serious bodily harm or death, (2) abuse of trust, (3)disregarded customary superior/subordinate relationships, (4) lengthy AWOL time,and (5) acts that endangered the security of the United States or welfare of other Armymembers. (4)In affidavits by fellow members of the National Association for Black Veteran's, the petitioner's character can be summed up as being a "very honest individual and works very hard to serve his fellow veterans and his community.” He could always be depended upon to complete all requested assignments. (5) Mr. K, the National Commander of NABVETS, states the applicant was very enthusiastic about starting a NABVETS chapter in Wilmington, NC. Upon informing him about the requirements to start a chapter, "two weeks later he had recruited 10 veterans that were ready to join the organization." Mr. K also states the applicant is, "a devoted family man that insures his responsibilities as a commander are done efficiently and in a timely manner. He volunteers five days a week as a Veterans Service Officer (VSO), assisting veterans and surviving spouses with the processing of their claims through the Department of Veterans Affairs. (6) Based upon the evidence presented, the separation authority could not have reasonably come to a finding that the petitioner's performance of duty warrants an under other than honorable conditions discharge. It is well established that Departments of the Federal government, like other federal agencies, are bound by their own regulations. (7) Wagner v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004) (citingService v. Dulles, 354 U.S. 363, 388 (1957)). Therefore, the United States Army is bound by its own regulations concerning discharge and awarding a characterization of service. As the Federal Circuit has observed, "even when Congress has given the military discretion in conducting its affairs, the military is bound to follow its own procedural regulations should it choose to promulgate them. "Fisher v. United States, 402 F. 3d 1167, 1177 (Fed. Cir. 2005). In this case, the Separation Authority did not follow the U.S. Army's directives in awarding characterization of service. (8) The Separation Authority enjoyed a broad and essentially unreviewablediscretion to decide whether to separate the petitioner and what characterization of service to award. It's not possible to assess the magnitude of the effect of the improper evidence used in the ultimate decision to award the petitioner an under other than honorable conditions discharge and is arbitrary, capricious, and unsupported by substantial evidence. The Separation Authority's decision to award the petitioner an under other than honorable conditions discharge is improper, erroneous, and not supported by the record evidence. g.Conclusion: (1)The Board may grant a discharge upgrade based upon Propriety or Equity.The Petitioner carries the burden of proof in demonstrating by a preponderance of the evidence the characterization of service was improper or inequitable. In order to prove inequity or impropriety, the Petitioner must overcome the presumption of regularity in the conduct of governmental affairs. In this case, the petitioner has clearly met his burden. The Separation Authority erroneously and unfairly discharged the Petitioner with a characterization of service of under other than honorable conditions. The petitioner was discharged pursuant Chapter 10, Army Regulation 635 - 200 (b), which states, the request for discharge in lieu of trial by court-martial does not prevent or suspend disciplinary proceedings. Whether proceedings will be held in abeyance pending final action on a discharge request per this chapter is a matter to be determined by the commander exercising general court-martial jurisdiction over the individual concerned. (2)Under the substantial evidence rule, all of the competent evidence must beconsidered, whether original or supplemental, and whether or not it supports the challenged conclusion, Van Cleave v. United States. Therefore, the Separation Authority does not have the discretion to only consider some evidence and ignore other evidence, such as the petitioner's character affidavits. If the Separation Authority entirely failed to consider an important aspect of the case, or its decision runs counter to the evidence before it or is so implausible, then its decision runs afoul, Verveck v. United States; 8 see also PAI Corp. v. United States. In the context of military boards, "decisions are subject to judicial review and can be set aside if they are arbitrary, capricious or not based on substantial evidence." Chappell v. Wallace. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. "Richardson v. Perales. When the evidence presented to the fact finder is flawed and so lacking in factual sufficiency to support the findings the result is fundamentally unfair and manifestly unjust, see Pool v. Ford Motor Co. It is clear and convincing that the Petitioner has overcome "presumption of regularity" and that the Separation Authority's decision to award him an Other than Honorable discharge are not in keeping with the regulations of the United States Army. The Separation Authority's decision to award an other than honorable conditions discharge is arbitrary, capricious, and unsupported by substantial evidence. Based upon the overwhelming evidence presented, and on equity, fairness, and justice the Petitioner respectfully requests that his characterization of service be corrected to general (under honorable conditions) and other relief as appropriate. 9.The applicant's record does not contain all of the facts and circumstancessurrounding the discharge process. However, it does contain a DD Form 214 thatshows he was discharged under the provisions of chapter 10, AR 635-200, whichmeans he would have voluntarily requested a discharge to avoid a trial by court-martial. 10.Chapter 10, AR 635-200 provides, in pertinent part, that a member who hascommitted an offense or offenses for which the authorized punishment includes a punitivedischarge may submit a request for discharge for the good of the service in lieu of trial bycourt-martial. Although an honorable or general discharge is authorized, a dischargeunder other than honorable conditions was normally considered appropriate. 11.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMRprovides that the: a.ABCMR begins its consideration of each case with the presumption ofadministrative regularity, which is that what the Army did was correct. b.ABCMR is not an investigative body and decides cases based on theevidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 12.He completed 1 year, 9 months, and 2 days of his 4 year enlistment obligation. Inreaching its determination, the Board can consider the applicant’s petitioners brief, andhis service record in accordance with the published equity, injustice, or clemencyguidance. BOARD DISCUSSION: 1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests. The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct and the reason for his separation.The Board noted that the applicant voluntarily requested discharge under chapter 10,Army Regulation 635-200, in lieu of court-martial and signed that he understood thatdischarge under chapter 10 could result in a discharge under other than honorableconditions. The Board considered the applicant’s record and evidence presented andfound no error or injustice.2.The Board considered the applicant's statement regarding his post-service conductand the letters of reference he provided in support of a clemency determination. Basedon a preponderance of evidence, the Board determined, considering the circumstancesof his discharge, to grant clemency and upgrade his discharge to general underhonorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his character of service as general under honorable conditions on his DD Form 214 for the period ending 24 October 1980. 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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so. 2.AR 15-185 (ABCMR) prescribes the policies and procedures for correction of militaryrecords by the Secretary of the Army, acting through the ABCMR. a.Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinentpart, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b.The ABCMR is not an investigative body and decides cases based on theevidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3.AR 635-200, then in effect, set forth the basic authority for the administrativeseparation of enlisted personnel. a.Chapter 10 stated a member who committed an offense or offenses for which theauthorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. b.An honorable discharge was a separation with honor and entitled the recipient tobenefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c.A general discharge was a separation from the Army under honorable conditions.When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/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 //