BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20190012882 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20140014326 on 31 March 2015. Specifically, he 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 8 June 2019 * an attachment labeled "Additional Notes for DD Form 149" containing a Department of Veterans Affairs (VA) claim number but without any supporting documentation 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 AR20140014326 on 31 March 2015. 2. As a new argument, the applicant states he was discharged for articles of misconduct when he should have been discharged for getting injured during basic training. He was discharged for receiving three counseling statements for misconduct. One of these three incidents was proceeded by an Article 15 for missing a formation that occurred while he was attending a levy briefing. Once he provided proof that he was at the levy briefing at the time of the formation, the Article 15 was dismissed and he was given a counseling statement to sign. He refused to sign the counseling because he considered this to be double jeopardy. Although he explained this, his leadership disagreed. He should have been discharged based on the two hernia surgeries that he had right after basic training and advanced individual training. He also injured his knees, back, and neck while lifting during his time in the Army. When he was discharged, he injured himself again while lifting and needs an additional hernia surgery. He was granted greater than 30% service-connected disability in April 2019. 3. The applicant enlisted in the Regular Army on 23 September 1986. 4. The applicant’s service record contains DA Forms 4856 (General Counseling Form) that show he was counseled on several occasions, for the following offenses: * on 28 May 1987, for disobeying a lawful order from a noncommissioned officer (NCO), on or about 28 May 1987 * on 31 May 1987, for failing to be prepared for a re-inspection and extra training * on 3 June 1987, advising him that he was being considered for administrative elimination under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), Chapter 13 (Unsatisfactory Performance) or Chapter 14 (Patterns of Misconduct) 5. The applicant accepted nonjudicial punishment (NJP) on 4 June 1986, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order from his superior NCO, on or about 28 May 1987. His punishment included 14 days of extra duty. 6. The applicant’s service record contains additional General Counseling Forms that show he was counseled on several other occasions, for the following offenses: * on 29 June 1987, for dereliction of duty * on 20 August 1987, for failing to be at his prescribed place of duty * on 15 September 1987, for failing to report to formation on time 7. The applicant's immediate commander notified the applicant on 14 October 1987 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, by reasons of his pattern of misconduct. His commander cited his failure to be at his appointed place of duty; dereliction of duty; poor performance; insubordination; failure to obey orders; and numerous negative counseling statements. The commander advised him of his rights and recommended a general discharge. 8. The applicant acknowledged receipt of the commander's notification memorandum the same day. He elected to consult with counsel; to submit statements in his own behalf [no statement available for review]; and not to have his case heard before an administration board. 9. The applicant's commander formally recommended his separation prior to the expiration of his term of service on 14 October 1987, under the provisions of Army Regulation 635-200, Chapter 14-12b, by reason of his patterns of misconduct. He again cited the aforementioned reasons for his recommendation. He also requested a waiver of the rehabilitative transfer requirements. 10. The applicant consulted with counsel on 29 October 1987 and 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. He again elected to submit a statement in his own behalf; however, his statement is not available for review. 11. Consistent with the commanders' recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct. He also approved the waiver for rehabilitative transfer and directed that the applicant be issued a DD Form 257A (General Discharge Certificate). 12. The applicant was discharged on 3 December 1987. 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 – Patterns of Misconduct." His service was characterized as under honorable conditions (general). 13. The applicant applied to the ABCMR for an upgrade of his general discharge; however, the Board denied his request on 31 March 2015. 14. The applicant service record does not contain evidence to support his contentions that his discharge should be changed to a medical discharge. During his separation processing, he consulted with counsel, and acknowledged he was being discharged under the provisions of Army Regulation 635-200, Chapter 14, for patterns of misconduct, he also signed a duly constituted DD Form 214, confirming he was being discharged for patterns of misconduct. There is no indication in the military records that he failed to meet military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 15. The Board should consider the applicant's request 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, the separation counseling/ separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct. The Board considered the document with a VA Claim number, but found insufficient evidence showing a condition that failed to meet medical retention standards. 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 to amend the decision of the ABCMR set forth in Docket Number AR20140014326 on 31 March 2015. 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 states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if 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) AR20190012882 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012882 7 ABCMR Record of Proceedings (cont) AR20190012882 5