IN THE CASE OF: BOARD DATE: 13 July 2020 DOCKET NUMBER: AR20190015396 APPLICANT REQUESTS: The applicant requests the upgrade of his general discharge under honorable conditions to honorable. 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, according to the Department of Veterans Affairs (VA), his character of service was upgraded to honorable; however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect this change. Only since he has gotten older has he felt the need to request this upgrade; he finds it increasingly difficult to compete against younger Veterans who also have service-connected disabilities. The applicant describes a call he had with the VA, where a gentleman told him, "I do see that the discharge was upgraded, but I don't know if it just relates to VA's benefits or what." The applicant remarked he did not quite know how to approach this matter; he additionally notes a state agency denied his request for Veteran's preference because of his character of service. a. The applicant states he is now 40 percent disabled, and he received this rating around the time of his separation. He contends, in effect, earlier in his career, he reenlisted twice and served honorably during both of those periods; however, it was during his last enlistment that his now former spouse made false accusations claiming he had been abusive. The applicant asserts he is not a criminal and has had no convictions for domestic violence or battery. He also has no history of misconduct due to alcoholism; his only crime was being himself. b. The applicant maintains his unit first sergeant (1SG) was embarrassed of him, as a black man and a Soldier; he recalls the 1SG telling him, "The Army is changing and a Soldier like you has no place in the New Army." At the time, the applicant could barely read or spell, and his math skills were very poor; he had a learning disability. The applicant believes the 1SG showed him no mercy when the 1SG expressed his disappointment in the applicant; the 1SG seemed to look for opportunities to humiliate him. c. Because of the applicant had "pes planus fasciitis and lower back issues," he was unable to actively engage in physical fitness activities; he became overweight and, as a result, his leadership made him feel like dirt. Despite having no problems with either alcohol or drugs, his chain of command referred him into the ADAPCP (Alcohol and Drug Abuse Prevention and Control Program); they did this just to create the appearance they had made attempts to rehabilitate the applicant. The applicant posits, for the offense of fighting with a Soldier he had caught having an affair with this wife, he "received nothing greater than a company-grade Article 15" (nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ)). The applicant notes the other Soldier had no disciplinary actions brought against him. e. While acknowledging he is not perfect, the applicant maintains the type of discharge his chain of command issued him does not reflect his character. He asserts being 40 percent disabled Veteran already creates enough of a barrier to his career opportunities; his circumstances should not be further aggravated by an inaccurate character of service. 3. The applicant's service records show: a. On 15 November 1989, the applicant enlisted into the Regular Army for 4 years. Following initial training, orders assigned the applicant to Fort Ord, CA; he arrived on 13 May 1990. Between May 1991 and April 1992, the applicant was awarded two Certificates of Achievement and an Army Achievement Medal. On 6 August 1992, he immediately reenlisted for 4 years. b. On 30 September 1992, Permanent Orders (PO) awarded the applicant the Army Good Conduct Medal (1st Award); PO also awarded him the Army Achievement Medal (2nd Award), effective 13 October 1992. Orders reassigned him to Fort Lewis, WA, and he arrived in or around March 1993. c. Effective 1 December 1994, the applicant's Fort Lewis chain of command promoted him to sergeant (SGT)/E-5. On 2 January 1996, the applicant's leadership awarded him a Department of the Army (DA) Certificate of Achievement. On 10 April 1996, the applicant immediately reenlisted for another 3 years. d. On 28 May 1996, the Case Review Committee (CRC) from Fort Lewis' supporting Army Medical Center issued a memorandum stating they had substantiated a report of mutual physical abuse by the applicant and his spouse. Pending the endorsement of the applicant's chain of command, the applicant and his spouse both were to undergo rehabilitative treatment. e. Between June and July 1996, the applicant's leadership issued the applicant three DA Forms 4856 (General Counseling Form): * 11 June 1996 – the applicant failed to attend Anger Control Class on 10 June 1996; he had been required to participate in Anger Management Classes three times a week, from 10 until 26 June 1996 * 1 July 1996 – the applicant had failed to pay his just debts to the Navy Exchange and to Military Rent-All * 11 July 1996 – the applicant's commander counseled the applicant following a report the applicant had committed an aggravated assault on his wife; as a result, the commander stated he would initiate a bar to reenlistment and was enrolling the applicant in the ADAPCP due to alcohol abuse f. On 19 July 1996, the applicant's commander initiated bar to reenlistment action against him; the commander cited the applicant's letters of indebtedness and stated the applicant had displayed a pattern of misconduct. The commander claimed the applicant had been continually late for formations, repeatedly failed to follow orders, demonstrated poor duty performance, and displayed an apathetic attitude. The battalion commander subsequently approved the bar to reenlistment. g. On 29 August 1996, the applicant completed 16 hours of Family Anger Control Training. h. On 14 November 1996, the Army and Air Force Exchange Service (AAFES) informed the applicant's commander via letter that the applicant had written four checks for which he did not have sufficient funds; the dollar amount of the four checks totaled $60, but with bank fees and the AAFES service charge, the applicant was required to pay $176.60. i. Between December 1996 and April 1997, using DA Forms 4856, the applicant's chain of command counseled him six times regarding the following issues; applicant's: * 2 December 1996 – failure to maintain sufficient funds in his bank account to cover checks he wrote to AAFES (referencing the 14 November 1996 AAFES letter) * 2 January 1997 – late arrival for formation * 24 January 1997 – lack of attention to detail, not following instructions, and showing a lack of motivation * 30 January 1997 – 1SG counseled the applicant concerning his personal conduct, which had been below standards over the previous 2 months; 1SG cited the applicant's bad checks, tardiness to formation, and disrespectful language toward the brigade staff duty noncommissioned officer (NCO) j. On 10 April 1997, the applicant received two additional counseling statements: one for missing morning formation, and the other (written by the applicant's 1SG) for failing to obey the 1SG's order to stop talking. Also on 10 April 1997, the applicant accepted NJP for failing to report to morning formation on 2 January 1997 and for being disrespectful to a superior NCO on 28 January 1997; no punishment was recorded on the record copy of the applicant's DA Form 2627 (Record of Proceedings under Article 15, UCMJ). k. On 22 October 1997, the applicant underwent a separation physical, in which the examining physician included a note that the applicant had severe pes planus (flat feet); the physician determined the applicant was qualified for separation. l. On 29 October 1997, the applicant's commander informed him, via memorandum, of his intent to separate the applicant under paragraph 14-12b (A Pattern of Misconduct), chapter 14 (Separation for Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander cited the following reasons, stating the applicant had: committed assault; failed to obey lawful orders; missed various formations; failed to maintain sufficient funds; failed to follow instructions; had discreditable involvement with civil and military authorities; was disrespectful toward an NCO; and lacked attention to detail. m. On 5 November 1997, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, and had informed him of his rights and the effect of waiving those rights. He affirmed he understood he was entitled to have his case heard by an administrative separation board, due to having more than 6 years of total active Federal service; the applicant elected to personally appear with counsel before an administrative separation, and he also chose to submit statements in his own behalf (the applicant's statements are not available for review). n. On 8 April 1998, an administrative separation board convened at Fort Lewis to consider whether the applicant should be retained or discharged; the applicant was present with counsel. The board heard testimony from the applicant's chain of command, past and present supervisors/coworkers, and the applicant's spouse. At the conclusion of testimony, and following a review of documentary evidence, the board determined the applicant had engaged in a pattern of misconduct and recommended his general discharge under honorable conditions. o. On 1 May 1998, the separation authority approved the board's findings and recommendations and directed the applicant's general discharge under honorable conditions; on 11 June 1998, the applicant was discharged accordingly. His DD Form 214 shows he completed 8 years, 6 months, and 27 days of net active duty service, of which 2 years, 2 months, and 2 days were served on his last reenlistment contract. While item 18 (Remarks) reflects his immediate reenlistments, his continuous honorable service is not listed. The applicant was awarded or authorized: * Army Achievement Medal (2nd Award) * National Defense Service Medal * NCO Professional Development Ribbon * Army Service Ribbon * Army Good Conduct Medal (1st Award) * Expert Marksmanship Qualification Badge with Rifle Bar * Driver and Mechanic Badge with Driver-W Component Bar 4. The applicant states, according to the VA, his character of service was upgraded to honorable, but his DD Form 214 does not show this change. The applicant affirms he has a 40 percent disability rating and finds it difficult to compete against younger disabled Veterans with an honorable discharge. He contends members of his chain of command, and especially his 1SG, belittled the applicant and continually sought ways to humiliate him. While acknowledging he is not perfect, the applicant maintains the type of discharge he received does not accurately reflect his service. a. During the applicant's era for service, commanders were authorized to initiate separation action against Soldiers who displayed a pattern of misconduct consisting solely of minor military disciplinary infractions. b. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. 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, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board agreed that in this case a determination by the VA that his service was honorable for that agency's purposes has no bearing on the character of service approved by the Army separation authority. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 2. The Board concurred with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by executing the correction described in Administrative Note(s) below. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant's character of service. 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 records indicates pertinent information, required by AR 635-8 (Separation Processing and Documents), is missing from his DD Form 214; as a result, add the following comment to item 18 (Remarks): "Continuous Honorable Active Service from 15 November 1989 to 9 April 1996." 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 the administrative separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 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 (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015396 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190015396 8 ABCMR Record of Proceedings (cont) AR20190015396 7