IN THE CASE OF: BOARD DATE: 11 August 2021 DOCKET NUMBER: AR20200008849 APPLICANT REQUESTS: upgrade of his general discharge to a fully honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 2 x Personal Statement * NY Retirement System Letter * Brief in Support of Material Contention * Extract of Army Regulation 600-85 (The Army Substance Abuse Program) * Report of Suspension of Favorable Personnel Action * Military Police Report * Summary Court-Martial * Article 15s * Counseling Statement * Separation Packet * DD Form 214 (Certificate of Release or Discharge from Active Duty) * U.S. Air Force DD Forms 214 * U.S. Air Force NGB Forms 22 (Report of Transfer or Record of Service) * Retirement Certificates * Air University Diploma * Army Achievement Medal Orders * Army Good Conduct Medal certificate * Air Medal Certificate * Department of Veterans Affairs rating * Photographs * DA Form 2-1 (Personnel Qualification Record) * Army National Guard Enlistment Document * Mail Room Inspection Report * Physical Training Test Scorecard * Verification of Degree * U.S. Air Force Honor Graduate Certificate * Letters of support and/or recommendation 3. The applicant provides a statement in which he states he did not have actual knowledge of the injustice surrounding his discharge until July of 2019 when he began to research current Army Regulations 635-200 (Active Duty Enlisted Administrative Separations) and 600-85. This research was triggered by a letter to him, dated June 24th 2019 from the New York State Local and State Retirement System (NYSLRS) rejecting his application for NY retirement service credit for his Army service 4 September 1979 to 30 November 1984. He enclosed a letter from NYSLRS that states upon review of his records, they found that he did not receive an Honorable Discharge from the military, which makes him ineligible to purchase military service credit with NYSLRS. He recalls contacting either the Discharge Review Board or Board for Correction of Military Records in the late 1980s or early 1990s requesting a change in his discharge and reenlistment code. He does not have copies that paperwork and the request was either never acted upon or was otherwise incomplete. However, he is certain that the issues documented in this application were never addressed as they were unknown to him until about 8 months ago. The issues are new. His case is unique in that he went on to serve in the military for 25 years after the discharge in question. As he believes the merits of this case warrant it. 4. The applicant provides a second statement in which he states as is fully documented in the accompanying statement and brief, he believes there to be multiple errors and injustices relating to his discharge in terms of the basis documented by his command, the process, as well as procedural requirements of AR 600-85 & AR 635-200. For his part, he takes full responsibility for his conduct. It was unacceptable and the punishment he received in each instance was appropriate. However, based on his military record as a whole, he believes the discharge he received was neither fair nor appropriate. For the past 35 years he has lived with the stigma of the General Discharge issued to him in 1984. Fortunately, he was given a second chance and went on to serve in the military with distinction for 25 more years. The information contained in this application is true based on the record and best of his knowledge and memory. 5. In a self-authored "Brief in Support of Materiel Contentions" (enclosed for the Board's review) the applicant essentially states: * He arrived in Korea, a young Soldier, and began developing a drinking problem * He was involved in two alcohol-related incidents and was stopped by the Military Police; he was also apprehended for a DUI charge by civil authorities * He was discharged under chapter 14 for misconduct when he should have in fact been discharged under chapter 9, alcohol-related discharge * Although there was some level of acknowledgement of a drinking problem by his chain of command, he was never in any treatment or rehab * In one incident, he took personal exception to his brigade commander's remarks and use of profanity * He was an outstanding Soldier in all aspects of soldiering but his entire chain of command had changed * The required counseling (at least by the standard of current regulations AR 635- 200) was nonexistent during his separation processing * He was never given any opportunity to overcome or correct deficiencies in terms of avoiding an adverse discharge * His company commander was intent on discharging him and deceptively convinced the chain of command above him the chapter 14 discharge was warranted and was the only feasible course of action 5. Review of the applicant's service records shows: a. He enlisted in the Regular Army (RA) on 4 September 1979 and he held military occupational specialties 11B (Infantryman) and 16R (Air Defense Artillery Short Range Gunnery Crewman). b. He served in Korea from 20 December 1979 to 10 December 1980. On completion of his tour, he was reassigned to 1st Battalion, 68th Air Defense Artillery at Fort Hood, TX. c. On 3 July 1982, a FLAG (Suspension of Favorable Personnel Action) was initiated against the applicant after he was apprehended by civil authorities and charged with public intoxication. He was fined. d. He reenlisted in the RA on 4 May 1982 and served in Hawaii from 9 November 1982 to 30 November 1984, assigned to Company B, 1st Battalion, 21st Infantry Regiment, 25th Infantry Division, Schofield Barracks. e. On 20 July 1983, he accepted nonjudicial punishment (NJP) under Article 15 for twice behaving himself with disrespect toward his brigade commander and for appearing in PT formation unshaven. His punishment consisted of a reduction to private first class (PFC)/E-3 and 30 days of Correctional Confinement Facility (15 of which suspended). f. On 15 December 1983, the applicant was arrested by Military Police. A Military Police Report, dated 10 January 1984, shows he was stopped for driving under the influence (DUI) of intoxicating liquor. At approximately 0400 hrs. 15 December 1983, while on routine patrol observed a vehicle fail to stop for a posted stop sign. Upon approaching the vehicle a strong odor of an alcoholic beverage was detected emitting from the driver, later identified as [Applicant] was asked to exit the vehicle, at which time a Field Sobriety Test was conducted, which he failed. He was advised of the Implied Consent Law, which he refused to submit to any chemical test, was issued a citation for DUI and for No Operators permit, further processed and released to his unit. g. On 6 July 1984, he again accepted NJP under Article 15 for absenting himself from his unit without authority. His punishment consisted of extra duty and restriction. h. On 25 July 1984, he was convicted by a summary court-martial of two specifications of being disrespectful in language toward a superior noncommissioned officer, who was then in the execution of his office. The court sentenced him to reduction to private two/PV2, forfeiture of $445 pay, and 60 days restriction. The convening authority approved the sentence and ordered it executed, but suspended the reduction to PV2 for a period of 30 days i. On 8 August 1984, the execution of the approved sentence to reduction to the grade of PV2/E-2 for 30 days was vacated. The unexecuted portion of the sentence to reduction to PV2/E-2 was ordered duly executed. j. On 20 August 1984, he accepted NJP under Article 15 for being incapacitated in the performance of his duties as a result of indulgence in alcohol. His punishment consisted of extra duty and restriction. k. On 12 September 1984, his immediate commander initiated separation action against him under the provisions of chapter 14 of AR 635-200 for a pattern of misconduct. The immediate commander stated: (1) The applicant had demonstrated apathy towards his military obligations as indicated by his inability to adjust to daily pressures of Army life. He is immature and unmotivated to become a productive Soldier. He has been coached and counseled, and has received judicial and non-judicial punishment in an effort to motivate him, but to no avail. (2) Rehabilitation efforts would create a serious disciplinary problem. The applicant had not developed in the productive soldier desired by this Command and the Army. He had been counseled by several members of the unit chain of command, to include myself, who advised him of the meaning and effect of a discharge from the Army under chapter 14 of AR 635-200. l. The applicant acknowledged receipt and signed a statement indicating that on 17 September 1984, he was counselled regarding his separation from the Army under Chapter 14, AR 635-200. It was explained to him that under Chapter 14, AR 635-200, that he may receive an Under Other Than Honorable Conditions Discharge and that he had the right to a board of officers. He understood all his rights that were explained to him when he consulted with counsel at Trial Defense Services. m. The immediate, intermediate, and senior commanders recommended approval of the discharge action. n. The Division Assistant Adjutant General returned the separation packet for additional counseling and opined that the applicant had received a General Officer Letter of Reprimand and that it appeared doubtful his character of service warranted some of his awards. o. On 18 September 1984, the battalion commander requested a rehabilitation waiver and opined that the applicant had had counseling statements and NJP which indicates his lack of interest for his responsibilities as a Soldier. The brigade commander concurred. p. On 28 September 1984, the immediate commander returned the separation packet back to the Division Adjutant General after taking corrective action. The commander opined that the applicant has had counseling statements and NJP which indicates his lack of interest for his responsibilities as a Soldier and the United States Army. Rehabilitation efforts would create serious disciplinary problems to the applicant and would not produce the quality Soldier desired by the Army. q. On 15 November 1984, by endorsement to the Division Commander, the brigade commander approved a rehabilitation waiver. r. The applicant was discharged from active duty on 30 November 1984. His DD Form 214 shows he was discharged under the provisions of chapter 14 of AR 635-20 due to pattern of misconduct with an under honorable conditions discharge. He completed 5 years, 2 months, and 27 days of active service. (1) He was awarded or authorized: the Army Service Ribbon, the Good Conduct Medal, the Army Achievement Medal (5th Award), Expert Badge with M-16 Rifle, and Sharpshooter Badge with Grenade Bar. (2) The Remarks Block listed his immediate reenlistment 19820504-19841130 but did not list his continuous honorable service. s. He enlisted in the Air National Guard (ANG) on 5 April 1993. He was recognized as an Honor Graduate at Lackland Air Force Base, TX on 15 July 1994. t. He served through multiple extensions in the ANG. During this service, he entered active duty from 16 March 2000 to 5 January 2001, 31 March 2002 to 30 April 2002 and from 15 October 2010 to 3 February 2011. He completed the Senior NCO Course, and he was awarded an Air Medal. u. He retired from the ANG on 29 May 2013 and awarded an Air Force Meritorious Service Medal. v. He provides multiple letters of support and/or recommendations (enclosed for the Board's review) from various individual who support upgrading his discharge and describe him as: * an individual who has faithfully, honorably and selflessly served his country and the state of New York a majority of his life * a dedicated servant of our country and still faithfully serves the people of New York * outstanding character due to the hundreds of hours of joint flight time in Antarctica, Greenland, and most recently in Afghanistan in support of Operation Enduring Freedom * consistently demonstrated outstanding professionalism, military bearing, and technical expertise * personal demeanor allowed him to work well with others in pursuit of solutions to overcome obstacles * volunteered to deploy to Afghanistan twice in support of Operation Enduring Freedom and when not on a deployment he was required to attend drills one weekend a month and fly training flights weekly to maintain readiness * his job performance as a loadmaster and Flight leader was outstanding; he is a great mentor for our Airman and NCOs * He was always very professional and had a great demeanor with his peers and respected by leadership * he is responsible for the fiscal monitoring of federally funded non-profit agencies in the New York State Albany region; and provides training and technical assistance to the non-profit agencies when needed; has done an outstanding job in performing these duties * he works well with other state employees and with staff and management at his assigned agencies and approaches his work with both diligence and professionalism * an individual of exemplary character, with good family and personal relationships that extend to student, business and community interests * His writing revealed keen insight into life, and his insightful comments were an asset to class discussions * a personable and interesting young man who brought a variety of experiences to his writing w. There is indication the applicant petitioned the Army Discharge Review Board for review of his discharge within that board's 15-years statute of limitations. 6. By regulation (AR 635-200), Soldiers are subject to separation under the provisions of paragraph 14-12c of AR 635-200 for misconduct, serious offense, or 14-12b for pattern of misconduct. 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 such is merited by the Soldier s overall record. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. By regulation (AR 635-8), for item 18 (Remarks) Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. Board members noted that based on his continued misconduct in the form of public intoxication, arrest for DUI, NJP, and summary court-martial, his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. His service did not rise to the level required for an honorable characterization. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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. 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 shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service 19790904 to 19820503.” REFERENCES: 1. Title 10, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. 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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008849 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1