IN THE CASE OF: BOARD DATE: 16 June 2021 DOCKET NUMBER: AR20210006068De APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Letters of Congratulations for winning the Jefferson Award * Jefferson Awards Certificate * Newspaper Article regarding applicant's efforts to help his community * State Youth Commission letter * Two Certificates of Appreciation * Golden Rule Award finalist letter * Outstanding Participant Certificate * County Resolution of Recognition * Letter of Congratulations for American Statesman article * Letter of Congratulations for winning the "Five Who Care Community Service" Award * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Applicant's health insurance information showing disabilities * Department of Veterans Affairs (VA) letter 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, in effect, the VA determined he served honorably from 2 May 1979 until September 1981, but the period 2 September 1981 until 13 August 1982 was under other than honorable conditions; he believes his adverse character of service was not justified. While he accepts total responsibility for his actions, he begs the Board to consider his circumstances; at the time, he was going through financial difficulties, he had "some challenges" with his superiors, and he needed to support his family. The applicant further asserts he was treated as a second-class citizen/Soldier due to his Puerto Rican heritage, and he maintains, despite his efforts to get help, his superiors turned against him. The stress he was under led to a divorce, but he has since remarried and has a beautiful family. Following his discharge, he actively worked to help his community, and, as a result, earned recognitions from both State and local governments. He has since moved back to Puerto Rico due to debilitating physical and emotional ailments, which he incurred during his active duty service. At present, he is a cancer patient, and an upgraded character of service would help him receive medical treatment through the VA. 3. The applicant provides letters, certificates, and awards showing he significantly helped the youth in his community and, through his leadership, mobilized his fellow residents to take action to reclaim their community from the ravages caused by crime, drugs, gangs, and poverty. 4. The applicant's service records show: a. On 29 May 1979, the applicant enlisted into the Regular Army for 4 years; he was 18 years old. Upon completion of initial entry training, and the award of military occupational specialty 19E (M48/M60 Armor Crewman), orders assigned him to Fort Hood, TX, and he arrived at his unit (a battalion in the 2nd Armored Division), on or about 27 September 1979. Effective 1 September 1980, the applicant's Fort Hood leadership promoted him to specialist four (SP4)/E-4. b. On 26 March 1981, the applicant's battalion command sergeant major wrote a letter of commendation, following the applicant's selection as "Colonel's Orderly" (a recognition based on the applicant's military appearance and knowledge of general military subjects). c. On 13 August 1981, the applicant's commander counseled him for failing to meet weight standards; the commander noted the applicant had been in the weight reduction program since April 1981, but had lost only 4 pounds. d. On 2 September 1981, the Fort Hood commissary notified the applicant the bank had returned a check he had written for $20.81 due to insufficient funds. e. On16 October 1981, orders transferred the applicant from the 2nd Armored Division to a battalion in the 1st Cavalry Division. f. On 4 November 1981, the military hospital on Fort Hood advised the applicant's commander the applicant owed the hospital $16.50. g. On 28 October 1981, the applicant's former brigade commander in the 2nd Armored Division awarded him the Army Achievement Medal for meritorious achievement. During the period 15 September through 15 October 1981, the applicant had served as a battalion project assistant. Because of his persistence and self-starting motivation, the applicant was directly responsible for the masterful completion of the many tasks required as part of the exchange program between the applicant's old 2nd Armored Division battalion and his newly assigned battalion in the 1st Cavalry Division. h. On 6 November 1981, the Fort Hood commissary advised the applicant, because the applicant had failed to pay the $20.81 owed, the commissary had sent the matter to the supporting Finance and Accounting Office for collection; the applicant still owed the $10 service fee. On 20 November 1981, a noncommissioned officer (NCO) counseled the applicant because, although the applicant had paid the Fort Hood military hospital, he had done so late. i. In December 1981, the applicant's commander received notice that the applicant had written a dishonored check for $8.87 to a local moving center. In January 1982, a local car dealer advised the applicant's commander the applicant had fallen behind on car payments and, when the dealer repossessed the car, the car had about $1,000 worth of damage; the dealer asked the commander's help to collect $1,374.88. j. In February 1982, a local equipment rental company informed the applicant's commander the applicant had written a bad check and, despite their repeated efforts, the applicant had failed to pay the money owed. On 25 February 1982, the local car dealer again wrote the applicant's commander regarding the car the dealership had repossessed; the dealer noted he had not received any response to his first letter. k. On 9 March 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for failing to report to morning formation on time; the applicant's company commander administered the NJP, and punishment included a suspended reduction from SP4 to private first class (PFC)/E-3. l. On 19 May 1982, the local car dealer once more wrote the applicant's commander asking for help to collect money owed. On 21 June 1982, a loan company sent the applicant's commander a letter stating the applicant had failed to pay a debt of $128.50, despite their numerous attempts to collect. m. On 2 July 1982, the applicant's company commander vacated the applicant's suspended rank reduction; the applicant's service record contains no documentation explaining the circumstances of the vacated reduction. n. On 6 July 1982, the applicant's commander advised him, via memorandum, that he was initiating separation action against the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander's stated reasons were the applicant's failure to pay just debts, and the applicant was overweight. The commander did not indicate the character of service he intended to recommend. o. On 9 July 1982, after consulting with counsel (a Judge Advocate General officer), the applicant acknowledged counsel had advised him of the basis for the contemplated separation action; in addition, the applicant affirmed counsel had informed him of the rights available and the effect of waiving those rights. The applicant elected to waive his rights and chose not to submit statements in his own behalf. p. In an undated indorsement, the applicant's commander recommended the applicant's discharge, based on failure to pay just debts and being overweight. The commander stated, since 16 October 1981 (the date of the applicant's transfer into the unit), the applicant's duty performance had been below average, and rehabilitation efforts would not be beneficial; the commander requested waiver of the rehabilitation requirements of AR 635-200. The commander did not mention the Army Achievement Medal (awarded for service just prior to his transfer), but noted the applicant had accepted NJP for not being at his prescribed place of duty. q. On 9 August 1982, the separation authority approved the commander's separation recommendation and directed the applicant's under other than honorable conditions discharge; in addition, the separation authority ordered the applicant's reduction from PFC to private/E-1. r. On 23 August 1982, orders discharged the applicant accordingly; his DD Form 214 shows he completed 3 years, 2 months, and 25 days of his 4-year enlistment contract. The separation authority was AR 635-200, paragraph 14-33b (3) (Other Misconduct – Patterns of Misconduct – Established Pattern for Failing to Pay Just Debts) and the narrative reason for separation was "Misconduct – An Established Pattern Showing Dishonorable Failure to Pay Just Debts." Additionally, the DD Form 214 lists the following awards: Army Achievement Medal, Army Service Ribbon, and a marksmanship qualification badge. 5. The applicant accepts responsibility for the misconduct that led to his discharge; however, he contends his leadership treated as a second-class citizen/Soldier due to his Puerto Rican heritage, and, despite his efforts to get help, his superiors turned against him. The applicant asks the Board to consider his circumstances and provides evidence of significant contributions to his community, made after his discharge. a. During the applicant's era of service, commanders could initiate separation action against Soldiers who displayed a pattern of misconduct; this included Soldiers who had failed to pay just debts. Separation authorities normally issued an under other than honorable conditions character of service to Soldiers discharged under this provision. b. The ABCMR is not authorized to grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, 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: After reviewing the application and all supporting documents, the Board found that partial relief is warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD liberal guidance for discharge upgrade. 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 found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board agreed the applicant’s prior honorable service, family hardship and his post service accomplishes and letters of support warrant an upgrade of his discharge. Therefore, the Board granted partial relief and determined that the discharge characterization was mitigated and should be upgraded to general under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX XXX XXX 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 reissuing the applicant a DD Form 214 showing his characterization of service as General Under Honorable Conditions. 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 discharge to honorable. 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): Not Applicable 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. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Section V (Other Acts or Patterns of Misconduct), Paragraph 14-33b (3) (Other Misconduct – Patterns of Misconduct – Established Pattern for Failing to Pay Just Debts). Commanders could initiate separation action against Soldiers who displayed a pattern of misconduct; this included Soldiers who had failed to pay just debts. Separation authorities normally issued an under other than honorable conditions character of service to Soldiers discharged under this provision. 3. AR 600-200 (Enlisted Personnel Management), in effect at the time, prescribed policies and procedures for the personnel management of enlisted Soldiers. Paragraph 8-11 (Approved for Discharge from the Service under Other than Honorable Conditions) stated, when a general court-martial authority (GCMCA) decided to discharge a Soldier under other than honorable conditions, the GCMCA would concurrently order the reduction of the Soldier to the lowest enlisted grade. Board action was not required for this reduction, and the regulation did not specify how separation authority was to notify the Soldier. 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) AR20210006068 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006068 7 ABCMR Record of Proceedings (cont) AR20210006068 6