IN THE CASE OF:  

BOARD DATE:  13 July 2020

DOCKET NUMBER:  AR20190014612


APPLICANT REQUESTS:  

*	Upgrade of his undesirable discharge under other than honorable conditions
*	Permission to personally appear before the Board  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record).

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  However, the Army Board for Correction of Military Records 
(ABCMR) 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, while in Germany, his command sergeant major (CSM) 
assaulted him; to avoid further attacks, the applicant left the CSM's office and headed 
for his barracks.  Once he got to the barracks, though, he found himself surrounded by 
several officers from his platoon who he believed were going to assault him; the 
applicant was able to avoid further attack by "giving notice to Officer W__, a fellow 
Soldier."  After this, they put him in a pup tent and ordered him to sleep on the ground in 
front of his unit.  The applicant asserts they falsely accused him of a number of things, 
but he was young and did not understand the proper procedures; he ended up just 
proceeding to court.  They eventually sent him from a German jail to the Retraining 
Brigade (RTB) at Fort Riley, KS; at the RTB, one of the officers and a sergeant 
threatened him.  They "placed him in the hole/lock-up," and to this day, he has no idea 
why.  They asked whether he wanted to remain in the Army or be discharged; he chose 
discharge because of the way they were treating him.  He maintains his leadership 
should have dealt with him differently; the inequitable way they treated him should 
justify the upgrade of his discharge. 

3.  The applicant's service records show:

	a.  On 29 August 1975, the applicant enlisted into the Regular Army for 3 years.  On 
or about 29 December 1975, the applicant's chain of command promoted him to 
private/E-2.  Following initial training, orders assigned the applicant to Germany, and he 
arrived on 8 January 1976.  

	b.  On 7 May 1976, the applicant accepted nonjudicial punishment under Article 15, 
Uniform Code of Military Justice (UCMJ) for the following two offenses:  failing to go to 
his appointed place of duty at the time prescribed and failing to obey the lawful order of 
a noncommissioned officer (NCO) to take his hands out of his pockets.  The imposing 
officer's punishment included reduction in rank to private/E-1.

	c.  On 28 May 1976, a special court-martial convicted the applicant of UCMJ 
violations:

		(1)  The court found the applicant guilty of willfully disobeying an NCO's order to 
make his bunk; failing to go to his appointed place of duty at the time prescribed; and 
willfully disobeying his commander's order to be ready for equipment re-inspection.

		(2)  The court sentenced the applicant to 3 months' confinement and forfeiture of 
$50 per month for 6 months.  The court-martial convening authority approved only so 
much of the sentence as provided for 3 months' confinement and directed the applicant 
to be confined at the U.S. Army Retraining Brigade (RTB); after being initially confined 
in the Area Confinement Facility in Mannheim, Germany, the applicant was transferred 
to Fort Riley, and he arrived on 17 June 1976.

	d.  The applicant's service records include Correctional Progress Notes, which, on 
the below-listed dates, reflect the following:

		(1)  On 22 June 1976, the applicant was interviewed by RTB NCOs:  

*	SSG H__ stated the applicant showed an established a pattern of disrespect 
toward NCOs, and he had been a problem since his RTB arrival; SSG H__'s 
impression was the applicant felt he was being picked on; as such, SSG H__ 
predicted the applicant would run into problems and should be monitored
*	SFC P__ said the applicant indicated he wanted to return to duty; the 
applicant had been a marginal Soldier and had also shown a pattern of 
disobeying orders; while the applicant's attitude seemed good, SFC P__ 
intended to recommend the applicant's separation if he disobeyed any orders
*	SSG M__ asked if the applicant had had problems with his superiors; the 
applicant said, before entering the Army, he had never had anyone tell him 
what to do; being ordered to do things now was hard to accept; SSG M__ 
recommended the applicant receive a lot of counseling

		(2)  On 25 June 1976, an RTB Social Worker interviewed the applicant and noted 
the following:

*	Applicant showed no respect for authority and admitted authority figures 
meant very little to him; the Social Worker opined the applicant's parents 
raised him without exerting much discipline and the applicant was used to 
getting his own way
*	Applicant told the Social Worker he wanted "out of the Army as fast as 
possible," and said he was considering going absent without leave (AWOL)
*	Social Worker stated the applicant did not display much potential for 
successful completion of the RTB program and recommended the applicant 
be watched closely

		(3)  On 26 June 1976, Staff Sergeant (SSG) C__ wrote, as he held a physical 
training (PT) formation, the applicant asked what type of PT they were going to do; 
when SSG C__ told him, the applicant said, in a sarcastic tone, "I'm not going to the PT 
field because my legs and feet hurt."  Because the applicant did not have a physical 
profile for his legs or feet, SSG C__ ordered the applicant to go to the Orderly Room.  
SSG C__ noted his fellow cadre had already had several encounters with the applicant, 
with the applicant telling his NCOs what he would and would not do.  On their arrival at 
the Orderly Room, SSG C__ instructed the applicant to assume the "leaning rest 
position," but the applicant refused, claiming he had hurt his back.

		(4)  On 28 June 1976, the applicant wrote two separate statements, defending 
himself against allegations made by RTB NCOs:

		(a)  The applicant claimed the allegations made by SSG C__ were false 
(referring to SSG C_'s 26 June 1976 progress report).  

*	Prior to the PT formation, the applicant learned from the platoon guide that 
sick call had already ended for the morning; in addition, Saturday sick call 
was only available for emergencies
*	When SSG C__ called the PT formation, the applicant told him his feet hurt, 
after which SSG C__ directed the applicant go to the Orderly Room; once 
there, he ordered the applicant into the "front-leaning rest position"; when the 
applicant did not do so, SSG C__ said the applicant was disobeying his order
*	The applicant argued he was not being disobedient; he explained how he had 
wanted to go on sick call that morning, but was too late; in effect, SSG C__ 
continued to assert the applicant was disobeying his order, and asked 
another cadre member to affirm he (cadre member) had heard the order

		(b)  The applicant contended a second set of charges, brought against him by 
Drill Sergeant R__, were also false; Drill Sergeant R__ claimed the applicant had 
communicated a threat to him.

*	On 25 June 1976, Drill Sergeant R__ called a formation; when the applicant 
fell into formation, he started to have a headache, so he dropped to his knees
*	Drill Sergeant R__ ordered the applicant to get up, and the applicant told him 
he had a headache; Drill Sergeant R__ repeated his order and the applicant 
repeated his claim
*	Drill Sergeant R__ then told the applicant, "If you don't get off your knees, 
something else will be hurting"; the applicant replied, "Bring it on!"; after this 
the applicant obeyed the order to get off his knees, and he and the drill 
sergeant went to see one of the senior NCOs 

		(5)  On 28 June 1976, the applicant's team leader (Captain (CPT) W__) stated he 
had placed the applicant in "administrative segregation" for refusing to participate in PT 
or do anything physical after claiming his back hurt.  CPT W__ went on to note the 
applicant had only been in the unit for a matter of days and, for that entire time, he had 
shown no respect for authority.  Although, in their initial interview, the applicant had told 
CPT W__ he wanted to remain on active duty, it was evident from the applicant's 
behavior that his return to duty would be impossible.  CPT W__ recommended the 
applicant's separation, under the provisions of chapter 13 (Separation for Unfitness or 
Unsuitability), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel).

		(6)  On 28 June 1976, the applicant RTB unit commander (CPT K__) wrote he 
concurred with CPT W__'s recommendation; in his opinion, the applicant had neither 
the desire nor the motivation to return to duty.  In addition, the applicant had not learned 
from his past mistakes and was repeating some of the same violations that had caused 
him to be convicted by a special court-martial.  Based on his own conversations with the 
applicant, CPT K__ said he found the applicant to be abrasive and stated the applicant's 
actions demonstrated he had no intention of performing satisfactorily.

	e.  At some point prior to 13 July 1976, the applicant's RTB commander advised him, 
using a Correctional Progress Note, of his intent to separate the applicant for 
misconduct, per chapter 13, AR 635-200.  On 13 July 1976, after consulting with 
counsel, the applicant acknowledged counsel had advised him of the basis for the 
separation action; he waived his right to have his case considered by a board of 
officers, to appear before the board of officers, and to be represented by counsel.  He 
elected to submit a statement in his own behalf, in which he wrote the following:

		(1)  The applicant expounded on his Army experiences, from basic combat 
training (BCT) to present, and he affirmed he had had no problems during BCT (except 
when it came to expressing his ideas).  During advanced individual training (AIT), he got 
along with almost everyone (he noted he had had a few arguments and got into one 
fight); nevertheless, he maintained he always treated everyone fairly.

		(2)  Upon his arrival in Germany, however, his intention to make the Army a 
career changed completely; he was in a place that was far from home and doing a job 
he did not like.  In addition, the other Soldiers seemed too anxious and greedy to get 
promoted; as a result, they did things he could not accept.  They spoke of sticking 
together, but, in reality, they only looked out for themselves; they argued amongst 
themselves, which made it hard to get along with them; and, although they demanded 
respect, they gave none in return.  

		(3)  When things started to happen, certain people did anything they could to 
take revenge upon him; they did it in such a way as to make it all seem legal, and no 
one believed the applicant when he tried to tell his side of the story.  The applicant also 
stated that, at some prior point, someone had assaulted him, but nothing was ever done 
about it.  The foregoing incidents made him wonder if his Army experience would 
always be like this; he noted, even at RTB, people had lied to him and about him.  He 
came to the following conclusions:  "If you don't have rank in the military, you don't 
make it.  If you are not with them, you are against them, and they have to eliminate you.  
If you do not stand up to them in their wrong, then you are wrong."

		(4)  The applicant stated his initial intention had been to request a board of 
officers in his separation action, but then he realized such a request would be worthless.  
He asserted that, in the past, despite telling the truth, and even when he had offered 
supporting evidence, he still lost.  He posited, "I'm not giving up, only giving out.  I've 
tried and I cannot win with the truth.  I do not wish to win only to let the people know that 
I am telling the truth."

	f.  On 20 July 1976, the separation authority approved the commander's 
recommendation and directed the applicant's undesirable discharge under other than 
honorable conditions; on 22 July 1976, the applicant was discharged accordingly.  The 
applicant's DD Form 214 (Report of Separation from Active Duty) shows he completed 
8 months and 29 days of his 3-year enlistment contract, with 55 days of lost time.  The 
separation authority was paragraph 13-5a (1) (Unfitness – Frequent Incidents of a 
Discreditable Nature with Military Authority), AR 635-200.  The applicant was not 
awarded or authorized any awards.

	g.  On 29 December 1977, the applicant petitioned the Army Discharge Review 
Board (ADRB), requesting an upgraded discharge and a personal appearance before 
the ADRB.  
		(1)  The applicant argued his discharge was inequitable because:  he should 
instead have been discharged with an honorable character of service under the 
Expeditious Discharge Program (paragraph 5-31, AR 635-200); he was unsuitable for 
military service because of a lack of general adaptability; and his other than honorable 
conditions discharge was too harsh.  

		(2)  On 4 October 1979, after approving the applicant's request for a personal 
appearance, the ADRB conducted a records review of the applicant's case.

		(a)  The Presiding Officer noted the ADRB had scheduled the applicant's 
personal appearance, but the scheduling letter was returned as undeliverable.  

		(b)  The ADRB denied the request for an upgraded character of service, stating 
both the applicant's disciplinary record and his failure to complete RTB's program 
provided a sufficient basis for an under other than honorable conditions discharge; 
additionally, the ADRB pointed out the applicant's successful completion of BCT and 
AIT demonstrated his suitability for military service.  

	h.  On 9 November 1979, the applicant resubmitted his petition for a discharge 
upgrade to the ADRB; he also renewed his request for a personal appearance.  The 
applicant included his counsel's brief, which essentially listed the same contentions 
previously considered by the ADRB.  On 13 October 1982, the ADRB administratively 
closed the applicant's petition because, in his last ADRB petition, the applicant had 
requested a personal appearance, but failed to respond to ADRB's hearing notification; 
in addition, based on that earlier request, the ADRB had conducted a 4 October 1979 
records review of the applicant's case; as such, the applicant was ineligible for any 
further ADRB review.   

4.  AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the 
Board; however, the request for a hearing may be authorized by a panel of the Board or 
by the Director of ABCMR on a case-by-case basis.

5.  The applicant states his discharge was unjust because his leadership, both in 
Germany and at the RTB, mistreated him and made false accusations.  He maintains 
his leadership should have dealt with him differently; the unjust way they treated him 
should result in the favorable consideration of his requests. 

6.  During the applicant's era of service, commanders were to initiate separation action 
for unfitness under paragraph 13-5a (1), AR 635-200, against those Soldiers who were 
involved in frequent incidents of a discreditable nature with military authorities.  Soldiers 
were to be afforded the opportunity to waive their right to a hearing before a board of 
officers; in such cases, commanders advised Soldiers in writing of their rights to consult 
with counsel, to present matters in writing or in person, and to be represented before 
the board by counsel.  Soldiers separated under paragraph 13-5a (1) normally received 
an undesirable discharge under other than honorable conditions.  

7.  In reaching its determination, the Board can consider the applicant’s petition, his 
evidence and assertions, and his service record in accordance with the published 
equity, injustice, or clemency guidance.


BOARD DISCUSSION:

1.  The Board determined the available records are sufficient to fully and fairly consider 
this case without a personal appearance by the applicant.

2.  The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, and published Department of Defense 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 reason 
for his separation, and whether to apply clemency. The Board agreed there is sufficient 
evidence to conclude that it is highly likely the applicant was a victim of hazing during 
his assignment in Germany, which clearly did not motivate him to improve his behavior.  
Once that pattern of resistance to authority began, it simply continued during his time at 
RTB.  The Board noted, however, that his misconduct was consistently minor.  While 
the RTB chain of command was justified in discharging him based on his frequent 
incidents of misconduct, the Board agreed that the inequitable treatment he had been 
subjected to should have been considered in determining his character of service.  
Based on a preponderance of evidence, the Board determined the character of service 
the applicant received upon separation is unjust and should be upgraded to general 
(under honorable 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 reissuing his DD Form 
214 for the period ending 22 July 1976 to show his service was characterized as 
general (under honorable conditions).

 

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 3 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 3-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.

2.  AR 635-200, in effect at the time, prescribed policies and procedures for enlisted 
administrative separations.

	a.  Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a 
separation with honor and was conditioned on the proper military behavior and 
proficient duty performance of the Soldier.  Due consideration was to be given to the 
Soldier's age, length of service, grade, and general aptitude.  

	b.  Paragraph 1-9e (General Discharge).  A general discharge was a separation from 
the Army under honorable conditions, which was given to an individual whose military 
record was not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 13 (Separation for Unfitness or Unsuitability) required commanders to 
initiate separation action against Soldiers who were unfit for continued military service.  
Paragraph 13-5a (1) applied to Soldiers who were involved in frequent incidents of a 
discreditable nature with either military or civil authorities.  Soldiers were to be afforded 
the opportunity to waive their right to a hearing before a board of officers; in such 
cases, Soldiers were advised in writing of their rights to consult with counsel, to present 
matters in writing or in person, and to be represented before the board by counsel.  
Soldiers separated for unfitness under this provision received an undesirable discharge 
under other than honorable conditions.  

3.  Military history accounts for and suggests that some of the most harrowing 
experiences for Soldiers took place in Basic Training.  There is a long history of 
sanctioned abuse of hazing and bullying as early as the 1940's. Even as early as the 
1950's when hazing during basic training was not regulated or even discouraged.  
Robust studies on hazing in the military are sparse and dated with the most recent 
study on hazing was published in 1992, and although it provides some valuable 
insights, a glaring lack of information still existed in 2012. 

      a.  In January 2012, all the Service Chiefs formally coordinated action to create a 
"Zero Tolerance" posture; to this end, the Fiscal Year (FY) 2013 National Defense 
Authorization Act (NDAA) required an initial report from each of the service secretaries' 
efforts to address hazing.  

           (1)  An executive summary published by Defense Equal Opportunity 
Management Institute (DEOMI), 'Executive Summary on Hazing in the Military," dated 
7 February 2012, provides the Department of Defense (DoD) did not have a standard 
definition for hazing, it only includes hazing behaviors; all services have independent 
definitions of hazing and lack defining bullying.  

           (2)  Defense Manpower Data Center (DMDC) reported there was no database on 
hazing or bullying in the military and as of 2012 none of their Status of Force Survey 
addressed these constructs.  However, both DMDC and DEOMI where currently 
conducting surveys which address bullying-like behaviors within the context of 
discrimination. 

      b.  In a study conducted by DEOMI, "Hazing: A Military Study," Technical Report 
No. 01-14, hazing was seen to serve three functions – socialization, cohesion-building, 
and weeding out those unfit or unwilling to serve.  In 2014 a DOD survey revealed that 
male hazing was the most common type of sexual assault. Hazing and bullying involves 
not just sexual assault, but other forms of violence as well. 

     c.  NDAA FY 2015 required the GAO to prepare a report on the policies to prevent 
hazing and systems initiated to track incidents of hazing in each of the Armed Forces.  

     d.  On 23 December 2015, DOD issued "Hazing and Bullying Prevention Response 
in the Armed Forces," policy memorandum, it provided guidance on enterprise-wide 
guidance on prevention training and education, as well as requirements for tracking and 
reporting incidents of hazing. Incidents of hazing that may involve allegations of sexual 
assault, sexual harassment, or discrimination must be address according laws, 
regulations and policy and prohibited hazing in all circumstances and environments, 
including "off-duty or in "unofficial" unit functions with a nexus to military service… The 
prohibition of hazing extends to such misconduct committed via electronic 
communications."  It directed that the Military Departments and the National Guard 
Bureau promulgate appropriate punitive regulations accordingly and provides updated 
definitions of hazing and bullying and examples of activities likely to be considered 
problematic; and mandates standardized incident tracking and reporting that will inform 
preventative training and education. 

     e.  In February 2015, the GAO submitted a report to Congress outlining seven 
recommendations DoD needed to take to increase oversight on hazing incidents 
involving service members.  The Department concurred with all seven recommendation 
to support the Hazing and Prevention efforts already in progress which included 
publishing an Anti-Harassment directive during FY 2018 updating the requirements 
outline in the aforementioned policy memorandum dated 23 December 2015.   

     f. A DoD Summary Report on Hazing Prevention and Response in the Armed Forces 
for reporting period 23 December 2015 – 25 April 2016 shows the following 
accomplishments and best practices were reported for FY 2016 included establishment 
of the DoD Hazing Bullying Workgroup was senior subject matter experts from DoD 
Office of the General Counsel, DEOMI, Military Departments, Office of the Secretary of 
Defense and provided a forum to synchronize efforts in developing effective prevention 
and response policies; using findings from studies to redefine hazing, processes in 
place, and develop comprehensive database, to include producing a key deliverable, 
"Commander's Guide to Hazing Prevention," used a tool to help commander's identify 
and respond to hazing incidents at the unit level; and Updating the 1997 Secretary of 
Defense Policy Memorandum on Hazing. 

    g.  As part of the result from the 2016 GAO report, FY 2017 NDAA legislated 
"Improved Depart of Defense prevention and Response Hazing in the Armed Forces, 
which requires the establishment of a database on hazing incidents, improved training 
on hazing, and annual reports to Congress.  

4.  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 (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.  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, 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.  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.

4.  AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the 
Board, but a request for a hearing may be authorized by a panel of the Board or by the 
Director of ABCMR on a case-by-case basis.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190014612


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190014612


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ABCMR Record of Proceedings (cont)	AR20190014612


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