ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 April 2020 DOCKET NUMBER: AR20190014498 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 4 September 2019 .Department of Veterans Affairs (VA) response letter, dated 12 August 2019 .VA Form 21-4138 (Statement in Support of Claim), with five attachments labeledas Events 1 through 5 .DA Form 1307 (Individual Jump Record), from 18 November 1987, through14 December 1989 .DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 25 February 1991 .congressional response letter, dated 24 July 1991 .DD Form 215 (Correction to DD Form 214, Certificate of Release or Dischargefrom Active Duty), dated 2 March 1993 (two copies) .DA Form 1577 (Authorization for Issuance of Awards), dated 2 March 1993 (twocopies) 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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file. 2.The applicant states, in effect, he was physically abused by other noncommissionedofficers (NCO). He had no problems with his first enlistment. He reported theseincidents to his upper chain of command but nothing was done. He relates five eventsas follows: a. Event 1 occurred on 25 February 1989, when he was in the motor pool. Several Soldiers started grabbing him by the back and feet. He felt endangered and pulled out a weapon [pocket knife] to protect himself. When they saw the weapon, they released him and he went to the company to inform his NCO about the incident. The next morning a threatening note was left on his door. He felt the incident should have been looked into further. b. Event 2 occurred on 24 April 1990, when he was asked by SSG F_ to go to thelime shack to talk. When they arrived, SSG F_ grabbed him by the shirt and slammed him against the wall locker four times and told him to stop fxxking with him, which he hadn’t done. Since he got there, SSG F had been messing with him because he tried to do things by the book. If there was anything wrong with doing things by the book, he needed to transfer to a unit that needed a proper NCO who would do what needed to be done. c. Event 3 occurred on 29 September 1990, when he was verbally and physically threatened by SGT M_. SGT M pushed him and threaten to punch him after they had a disagreement over piling up some palettes of water. He included several handwritten witness statements. d. Event 4 occurred on 27 November 1990, when he was told to watch his butt by SSG B_ because Lieutenant C_ was out to get him. He wrote this statement to cover himself in feeling the lieutenant had a grudge against him. SSG B signed the statement as a witness. e. Event 5 is a typed letter to Congressman R_ dated 9 February 1991. Hestated that he had served almost five years, including one reenlistment, and had received the Army Commendation Medal, Army Good Conduct Medal, and 10 Certificates of Achievements. He attended Airborne School, Primary Leadership Development Course, and NBC School. He had taken some college courses and had not had any nonjudicial or judicial actions taken against him. He wanted to become an Army Recruiter and was recommended by the 82nd Signal Battalion Commander. He deployed in support of Operation Desert Shield, and on numerous field training exercises. He stated the following are the circumstances leading to his discharge: (1)Since receiving his sergeant stripes in February 1990, he has been physicallyassaulted (either forcefully shoved or hit) four times by the following personnel: SSG F_, SGT B_, SGT M_ and most recently SGT G_. These incidents were brought up to the chain-of-command along with my request for a transfer to another company, which was denied, SGT T_ has and will testify in my behalf that these assault statements are true and that they have been brought up to the chain of command. (2)Ever since he supported Aviation SGT G_ had done nothing but call him namesand harass him. On 21st December 1990, he relieved SGT G_ of duty, hebecame belligerent, so the applicant wrote a statement on him and gave it to theNCOIC, SSG K, SSG K proceeded to replace SGT G on his the applicant’s teamwhich they agreed on. (3)Later that afternoon he was physically assaulted (push several times) by SGTG_. In a rage, the applicant grabbed a rake to scare SGT G into leaving himalone. The rake was taken by another SGT; then SGT G continued to push, andthreaten to do bodily harm to him. In fear of what SGT G_ might do to him, hegrabbed his weapon, and used it to scare SGT G away from him. (4)The question he asks himself over and over is; how many times does a personhave to be verbally and physically assaulted before something is done by thechain of command. This happened several times before and nothing had beendone about it. In this particular situation, he really felt seriously threatenedbecause SGT G had said he could get away with hitting him because of SSG Fgetting away with it. He understood that his actions were not professional andunbecoming of an NCO, but he felt he was provoked into his actions afterrepeatedly telling SGT G to stop pushing him and he continued. He also felt, hewas being treated unfairly because SGT G had pushed, shoved, and verballyassaulted him several times and NO CHARGES were brought up against him. 3.The applicant enlisted in the Regular Army on 25 February 1986, and wasdischarged for immediate reenlistment on 28 November 1988. He reenlisted on29 November 1988, attained the rank/grade of SGT/E-5, and served in Southwest Asiafrom on or about 12 August 1990 through on or about 24 January 1991. 4.The applicant’s record is void of a separation packet containing the specific facts andcircumstances surrounding his discharge processing. However: a.Orders Numbers 24-7, issued by Headquarters, 82nd Airborne Division, FortBragg, NC on 5 February 1991, show the applicant was reduced in rank/grade to private/E-1, with an effective date of 23 January 1991. b.Orders Numbers 24-8, issued by Headquarters, 82nd Airborne Division, FortBragg, NC on 5 February 1991, show the applicant was ordered discharged under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), on 25 February 1991. 5.The applicant was discharged on 25 February 1991, under the provisions of ArmyRegulation 635-200, paragraph 14-12c, for misconduct – commission of a seriousoffense. He was credited with completing five years and one day of net active service,and his service was characterized as UOTHC. 6.The applicant provided the following for consideration in his case: .VA Response Letter, showing he applied for benefits .VA Form 21-4138, with five attachments [as outlined above] .Congressional Response Letter, telling the applicant he needed to apply for anupgrade and benefits .DA Form 1307, documenting his 10 jumps .DD Form 214 and DD Form 215 .DA Form 1577, showing he was issued and shipped copies of his earned medals 7.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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 absence of a separation packet or the nature of his misconduct and the reason for his separation. The Board considered VA Form 21-4138 and the applicant's stated events, but found no additional corroborating documentation. TheBoard found insufficient evidence of in-service mitigating factors for misconduct and the applicant provided no evidence of post-service achievements 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.The Board concurred with the correction stated in the Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found 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. X CHAIRPERSON 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): A review of the applicant's record shows his DD Form 214, for the period ending 25 February 1991, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding to item 18 (Remarks) the entry "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE." 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 ABCMR to excuse an applicant's failure to timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe 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//