ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 March 2021 DOCKET NUMBER: AR20200009512 APPLICANT REQUESTS: * an upgrade of his under honorable conditions discharge to an honorable discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 27 October 1988 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. He states he received an unjust rating because it was never explained to him the reason for his discharge and there were no evaluations done. While stationed in Germany, he was told to pack his bags and head back to. He signed all the documents that were given to him at Fort Jackson, SC, with no knowledge of what he was signing. He knew he was getting out and thought it was just for discharge. He never had an exit examination before being discharged as well. A year later he received a DD Form 214 and while reviewing the document, he noticed that he was discharged with an under honorable conditions character of service. He was never told why the separation reason was for misconduct-commission of a serious offense. He explained that his superior kept purposely bumping heads with him and creating a hostile environment. 3. On 23 June 1986, the applicant enlisted in the Regular Army for a term of 4 years, at the age of 20 years old. He extended his enlistment to 4 years and 6 months. 1 4. After completing initial entry training, on 12 December 1986, he was assigned overseas in Germany in military occupational specialty 63W (Wheel Vehicle Repairer). 5. On 3 March 1988, he accepted nonjudicial punishment (NJP) for Article 121, Uniform Code of Military Justice (UCMJ) –– Larceny of Property, for stealing $379.38, property of American Express Bank, at Baumholder, Germany. His punishment consisted of reduction to Private E-2; forfeiture of $376.00 for two months, suspended until 20 August 1988; and 45 days extra duty. 6. On 14 April 1988, his immediate commander initiated a bar to reenlistment against him. It states: a. He received an NJP on 22 August 1987 for worthless checks and his punishment consisted of reduction to Private E-2, forfeiture of $178.00, and 14 days extra duty; each were suspended until 17 February 1988 (record is void of NJP). b. He received an NJP on 24 February 1988, for larceny. c. He had a record of non-payment of just debts showing he was counseled for non- support of dependents; having dishonored checks and was counseled by the Army Community Service (ACS); and he had a payment which was overdue with the Army and Air Force Exchange Service (record is void of the documents). d. He had other relevant indicators of untrainability in which he was counseled for missing an ACS appointment, violating visitor policy, missing formation on two occasions, and missing guard mount (record is void of counseling statements). e. The applicant acknowledged he had been notified of the bar to reenlistment and he elected to submit a statement in his own behalf (if submitted the record is void of the statement). On 18 May 1988, the bar to reenlistment was approved. 7. By memorandum, subject: Notification of Proposed Separation Action UP [under provision] AR [Army Regulation (Personnel Separations – Enlisted Personnel)] 635-200, Paragraph 14-12c, Serious Misconduct, 17 August 1988, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of AR 635-200, chapter 14, paragraph 14-12c and he was recommending a general discharge. The reason for his proposed action was based on the applicant's pattern of misconduct. On 3 March 1988, he received a field grade Article 15, UCMJ for committing larceny of $379,38; he had been counseled numerous times for various infractions; and formally counseled concerning his deficiencies and afforded ample opportunity to overcome them. 8. The applicant acknowledged he had been notified of the pending separation action against him for a pattern of misconduct under AR 635-200, paragraph 14-12c and he had been advised of the basis for the contemplated action and understood his rights. He initially elected to consult with counsel but later waived this right. He elected to submit statements in his own behalf. He stated: a. He wanted to express why he felt he should not be chaptered from the Army and/or not be afforded the opportunity to reenlist. He realized that he had been given chances in the past but after receiving the challenge from Lieutenant Colonel (LTC) to "either straighten up or be shipped out," he honestly felt that he tried and had straightened up. All he was asking was for one last fair chance. b. Since his session with his superiors, four months ago, regarding his financial problems, he paid off his Deferred Payment Plan, his overdraft at the bank, the bill for the watches, reduced his automobile bill, reinstated his allotment for the other automobile, which he thought he had sold, and a fourth bill would have been taken care of in approximately two to three weeks. The matter of the outstanding bill for books was being handled through legal services at ACS and himself and he hoped to have that resolved very soon. Additionally, he had been to budget counseling through ACS. He was not a quitter. Leaving the Army and quitting what he had set out to do, was not what he had in mind. He asked for his commander to reconsider the matter of separating him from the Army. 9. By memorandum, 18 September 1988, the applicant's immediate commander indicated the applicant's conduct reflected standards that were not acceptable in the unit or the U.S. Army and for these reasons he recommended he be separated. He indicated that 13 counseling statements and a mental status evaluation were enclosed; however, the record is void of these documents. 10. The applicant's intermediate commander recommended approval of the separation, with a general under honorable conditions discharge and on 26 September 1988, the appropriate separation authority approved the recommendation for separation and directed that the applicant be issued a General Discharge Certificate. 11. On 24 October 1988, The applicant signed a medical separation option form indicating that he did not desire a separation medical examination. The physician assistant indicated that he reviewed the applicant's medical records and determined that a medical examination was not required. 12. On 27 October 1988, the applicant was discharged under AR 635-200, paragraph 14-12c for misconduct-commission of a serious offense. His service was characterized as under honorable conditions (general). He completed 2 years, 4 months, and 5 days of his 4-year, 6-month contractual obligation. His DD Form 214, shows he was separated at Fort Jackson, SC and his last duty assignment was in Europe. The form also shows: * He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * M-16 Rifle Marksman Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Driver and Mechanic Badge, with Driver – W * He endorsed the document and initialed that he requested a copy of it 13. The applicant requests an upgrade. He states it was never explained to him the reason for his discharge. He was told to pack his bags and to head back to South Carolina. He signed all the documents that were given to him at Fort Jackson, SC, with no knowledge of what he was signing. He knew he was getting out and thought it was just for discharge. He never had an exit exam before being discharged as well. a. His record shows he enlisted at the age of 20 years old; he was barred from reenlistment; and he accepted two NJPs, one for larceny of $379.38, the property of American Express Bank. He completed 2 years, 4 months, and 5 days of his 4-year, 6- month contractual obligation. b. In regards to the applicant's contention that it was never explained to him regarding the reason for his discharge and he never received an exit examination: (1) The applicant was notified of his discharge and signed a document indicating that he understood the basis for his discharge. He had the opportunity to consult with counsel prior to his separation but declined to do so. It is true the commander mentioned he was discharged for a pattern of misconduct, but under the provisions of AR 635-200, paragraph 14-12c, which is for misconduct, commission of a serious offense. He endorsed his DD Form 214, which stated the character of service, separation authority, and narrative reason. (2) He signed a document regarding his separation medical examination and he indicated that he desired not to have one. c. In regards to the applicant's request for a personal appearance, Army Regulation 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. d. AR 635-200, Chapter 14 (Misconduct), Section III, paragraph 14-12c, in effect at the time, was a separation for commission of a serious offense. It provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court- Martial (MCM). The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. A mental status evaluation is required under the provisions of chapter 14, section III (Acts or Patterns of Misconduct). A medical examination is not required but may be requested in writing. e. Although his record contains a separation packet that shows he received a mental status evaluation, there appears to be administrative irregularity that took place in the proper retention of required military records. AR 635-200 requires soldiers to receive a mental status evaluation when being processed for separation under chapter 14. The record is absent the disposition of his mental status evaluation because his record is void of it. f. AR 635-200, paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. g. In accordance with the MCM, Article 121, UCMJ –– Larceny of Property maximum punishment included a punitive discharge. 14. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documentation 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, a bar to reenlistment, the available separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation for the misconduct; the applicant did not provide sufficient evidence of post-service achievements or letters of reference to support a clemency determination. Based on a preponderance of evidence, to include the documentation available for review, the applicant’s misconduct and the length of his service, the Board determined that the character of service he received upon separation was not in error or unjust. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 for correction of the records of the individual concerned. 4/7/2021 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. 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 Army Board for Correction of Military Records (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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 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. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. d. A mental status evaluation is required under the provisions of chapter 14, section III. A medical examination is required for chapter 14, section III, for absentees who are returned to military control from a status of absent without leave or desertion. Medical examinations under other provisions of this regulation are not required, but may be requested by Soldiers in writing. e. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 4. In accordance with the Manual for Courts-Martial, Article 121, UCMJ –– Larceny of Property, maximum punishment included a punitive discharge. 5. 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. 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, 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. 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//