IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190011108 APPLICANT REQUESTS: The applicant requests: * an upgrade of his general under honorable conditions discharge * the discharge for a pattern of misconduct be expunged APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement 7 July 2019 * Certificate of Achievement, dated 18 November 1983 * Diploma, Airborne Course, dated 14 December 1983 * Army Achievement Medal, dated 29 October 1985 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 5 November 1986 * Certificate Ohio Peace Officer Basic Training Program, Dayton Police Academy, dated 7 February 1997 * Certificate of Completion, Recruit Police Officer Training Program, Dayton Police Academy, dated 13 February 1997 * Oath of Office, dated 13 April 1998 * Written Commendation, dated 3 December 1999 * Distinguished Service Award, dated 20 March 2001 * Written Commendation, dated 22 December 2004 * Certificate of Training, First Responder HazMat (Hazardous Material)/WMD (Weapons of Mass Destruction)/PPE (Personal Protective Equipment) for 22 February 2005 * Degree for Bachelor of Science in Business, University of Phoenix, dated 31 October 2017 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 his discharge should be upgraded due to the circumstances and the actions of his accusers. His orders from the noncommissioned officers involved were inconsistent and in some cases unethical. The misconduct was interpreted as conflict to those orders. In his self-authored statement he explains: * The reason why his military service and his discharge should be reevaluated * Why his case is unique * How he excelled in advanced individual training (AIT) * Why he was denied the opportunity to serve in the Special Forces and how the Army was in breach of contract * How he was forced to change his military occupational specialty (MOS) but was unable to meet the requirements * The reasons why he decided to remain in the Army rather than accept a discharge * The hazing and other issues of harassment he had to endure while in the service * Why the punishments he received were unfair * How his youth played a part in his inability to cope with certain situations * Why he elected the early discharge * His post-service accomplishments 3. On 16 August 1983, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 4 years. 4. He accepted nonjudicial punishment (NJP) on: * 20 November 1984 for being derelict in the performance of his duties * 16 April 1986 for negligently missing moving * 22 August 1986 for, on two occasions, failing to go at the time prescribed to his appointed place of duty, going from his appointed place of duty, willfully disobeying a lawful order from his superior noncommissioned officer (NCO), and making a false official statement with intent to deceive * 1 October 1986 for willfully disobeying a lawful order from his superior NCO 5. On 26 June 1985, the applicant received a bar to reenlistment for not maintaining a military haircut, not shaving, not cleaning his weapon, failing to clean his military equipment, having unserviceable fatigues, being out of uniform at Division Guard Post, and missing formation. The bar to reenlistment certificate states that the applicant’s counseling statements show that he had a lack of concern and motivation. 6. A letter from the Fayetteville, NC, Police Department, dated 17 April 1986, states: a. On 9 April 1986, the applicant reported to their Office of Professional Standards that he was arrested by a police officer at the Burger King on Bragg Boulevard for fighting and being intoxicated. The applicant asked the officer if he could be released without Fort Bragg, NC, officials finding out about his arrest. He paid the officer $120.00 and the officer allowed the applicant to go free. b. After further investigation, the police department found that the claim made by the applicant could not be substantiated. The decision was made to administer a polygraph on the applicant and while he was being transported to the Law Enforcement Center for the polygraph, the applicant stated he wanted to drop the case. He admitted that he lied about the incident in order to get out of the trouble he was having in the military. 7. On 3 September 1986, he was counseled for a series of minor disciplinary infractions and a pattern of misconduct. He was counseled under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), notifying him that if his conduct continued, the types of separations and discharges he may receive. 8. In connection with his administrative separation, the applicant underwent a mental status evaluation and medical examination; both cleared him for separation. 9. On 8 October 1986, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of AR 635-200, chapter 14, paragraph 14-12b, a pattern of misconduct. 10. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by his consulting counsel of the basis for the contemplated action. He elected not to submit statements in his own behalf. 11. The chain of command recommended approval of the separation and the immediate commander requested waiver of the rehabilitative transfer. The appropriate separation authority approved the waiver for the rehabilitative transfer and the recommendation for separation and directed that the applicant be issued a General Discharge Certificate. 12. On 5 November 1986, the applicant was discharged accordingly. His service was characterized as under honorable conditions (general). He completed 3 years, 2 months, and 20 days of net active service this period. His DD Form 214 shows: * His MOS as 11B (Infantry) for 2 years and 11 months * He was awarded or authorized: * Parachutist Badge * M16 Rifle Marksman Marksmanship Qualification Badge * M60 Machine Gun Expert Marksmanship Qualification Badge * Army Service Ribbon * Army Achievement Medal * Expert Infantry Badge 13. The applicant provides: * DD Form 149 (Application for Correction of Military Record), previously discussed * Self-Authored Statement 7 July 2019, previously discussed * Certificate of Achievement, dated 18 November 1983, showing he was awarded for being selected as the Honor Graduate for the cycle * Diploma, Airborne Course, dated 14 December 1983, showing he completed the course * Army Achievement Medal, dated 29 October 1985, showing he was awarded for meritorious achievement as a Radioteletype Operator contributing to the success of recent operations of the National Training Center, Fort Irwin, CA * DD Form 214 for period ending 5 November 1986, previously discussed * Certificate Ohio Peace Officer Basic Training Program, Dayton Police Academy, dated 7 February 1997, showing he completed the program * Certificate of Completion, Recruit Police Officer Training Program, Dayton Police Academy, dated 13 February 1997 * Oath of Office, dated 13 April 1998, which shows the applicant was appointed as Deputy Sherriff of Montgomery County, OH * Written Commendation, dated 3 December 1999, showing he was commended for being a first responder on the scene and reviving a four-month old baby by initiating cardiopulmonary resuscitation * Distinguished Service Award, dated 20 March 2001, shows it was presented by the Department of Police * Written Commendation, dated 22 December 2004, showing he was commended for him and another officer’s quick reaction as first responders to a fire in an apartment building; activating the alarm and evacuating the tenants, preventing injury and risk of smoke inhalation to the tenants * Certificate of Training, First Responder HazMat (Hazardous Material)/WMD (Weapons of Mass Destruction)/PPE (Personal Protective Equipment) Awareness for 22 February 2005, showing he completed the course * Degree for Bachelor of Science in Business, University of Phoenix, dated 31 October 2017 14. The applicant states the discharge action should be expunged and his discharge upgraded due to the circumstances and the actions of his accusers. His orders from the noncommissioned officers involved were inconsistent and in some cases unethical. The record shows the applicant enlisted at the age of 18 years old and he accepted four NJPs. He served 3 years, 2 months, and 20 days of his 4 years contractual obligation. 15. In regards to his request to expunge his separation action, the ABCMR is not authorized to expunge his discharge action; however, may change a Soldiers record to show that he was discharged under AR 635-200, paragraph 5-3 (Secretarial Authority). 16. AR 635-200, Chapter 14 dealt with separation for various types of misconduct. Paragraph 14-12b was a separation for a pattern of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. Paragraph 5-3 (Secretarial Authority) states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 17. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. 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 and the reason for his separation. The Board considered his contention regarding the actions of his accusers and weighed it against the available evidence in the records; the Board found insufficient evidence of in-service mitigation or his acceptance of responsibility to overcome the misconduct. The Board considered the documents provided by the applicant as evidence of post- service achievements, but determined them to be insufficient to overcome the multiple incidents of misconduct and to support a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service and the reason for discharge 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 : : : 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. An honorable discharge was a separation with honor and entitled the recipient to benefits 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. b. Chapter 14 provides members are separated under chapter 14 because of minor disciplinary infractions, pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. Paragraph 14-12b, a pattern of misconduct, provided for the separation of a Soldier due to discreditable involvement with civil or military authorities and conduct prejudicial to good order and. discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. c. Paragraph 5-3 (Secretarial Authority) states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011108 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011108 7 ABCMR Record of Proceedings (cont) AR20190011108 6