IN THE CASE OF: BOARD DATE: 20 October 2021 DOCKET NUMBER: AR20210008216 APPLICANT REQUESTS: * Upgrade of his general discharge under honorable conditions to honorable * Permission to personally appear before the Board, via video/telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * Four letters of support * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Applicant's separation orders * Army Review Boards Agency (ARBA) letter * Applicant's enlistment order * Extract of applicant's military medical/dental records (33 pages) 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 he faced several difficulties (most notably, the death of his grandmother) while assigned to a Movement Control Company within an Army headquarters. The applicant offers additional details and arguments in his self-authored statement: a. The applicant entered the Army straight out of high school, and the Army allowed him to enlist in the rank/grade of private first class (PFC)/E-3 because he had participated in Junior Reserve Officers' Training Corps (JROTC); he notes that he excelled at physical training in both basic combat training (BCT) and advanced individual training (AIT). Fort McPherson, GA was his first duty station after initial entry training (IET), and the assignment excited him because, while the rest of his AIT peers went overseas, he was going to remain stateside. b. His leadership placed him in a task force within the Movement Control Company, and, there, he confronted a lot of criticism from his noncommissioned officers (NCO); the applicant additionally discloses he suffers from a medical condition called "Von Recklinghausen's Disease," a hereditary condition that affects his nervous system and can cause the formation of fibromas. (1) The applicant began to struggle with waking up on time for physical training (PT), and this is when his NCOs started counseling him about missing formation; the applicant notes he received these counselings despite the fact his supervisor lived in a room directly above him. The applicant maintains he also struggled with depression when, in 1997, he received news his grandmother died; he points out, because of his feelings of depression, he saw a psychiatrist that both his NCO and his officers had recommended. (2) The applicant's chain of command downgraded his rank to private (PV2)/E-2, and required him to prove he could be a better Soldier; he earned his rank back in just 6 months. The following year, his leadership discharged him based on a "bogus charge" for which neither his supervisors nor his first sergeant (1SG) could offer any proof. Essentially, the applicant's NCO called the applicant at the 1SG's office and claimed the applicant had violated security protocols; the NCO gave the applicant two alternatives: go home or go to Fort Leavenworth. According to the NCO, the applicant had "tampered with government property over the internet." c. The applicant asserts his chain of command did not offer him the opportunity to consult with legal counsel; as a result, and because he was afraid, the applicant panicked and opted to return home. The applicant additionally points out his superiors coerced him into selecting this option fully cognizant that the applicant was completely unaware of his rights as a U.S. Armed service member. The applicant contends what his leaders did was an abuse of power; had he been allowed to consult with counsel, he is certain the Army would have separated him with an honorable discharge. 3. The applicant provides four letters of support, two from close friends and two prepared by the president and vice president of the company at which the applicant works. All four laud the applicant as a person of character, someone with a strong work ethic, and an employee who is very capable at his job. The applicant additionally submits 33 pages extracted from his military medical records. 4. The applicant's service records show: a. On 20 October 1994, as part of his Regular Army enlistment, the applicant underwent an entrance physical; during the physical, the examining physician noted a disqualifying medical condition: Von Recklinghausen's Syndrome. On 8 November 1994, the command surgeon for the U.S. Army Recruiting Command approved a medical waiver, clearing the applicant to enlist. On 28 June 1995, the applicant enlisted into the Regular Army for 4 years; his enlistment rank/grade was PFC/E-3, and he was 18 years old. b. Upon completion of IET, and the award of military occupational specialty 74C (Record Telecommunications Operator-Maintainer), orders assigned the applicant to Fort McPherson, GA, and he arrived at his unit on 28 November 1995. Between 3 January and 26 June 1996, the applicant's leadership counseled him eleven times. Eight counseling forms addressed the applicant's failure to report on time for PT and/or work, and the remainder admonished the applicant for failing his Army Physical Fitness Test (APFT), lying to his NCO, and being out of uniform/failing to follow instructions. c. On 6 September 1996, the applicant's chain of command referred him to the supporting Community Mental Health Service (CMHS) for counseling and support. According to the request form, the applicant had stated, "things in his past (were) contributing to his lackadaisical attitude. [Applicant] forgets, misplaces, and has been tardy on a regular bases (sic). This command feels this Soldier need(s) professional counsel that we aren't qualified to give." d. On 11 September 1996, two NCOs (Staff Sergeant (SSG) and a second NCO whose name is illegible) rendered a statement, wherein they gave descriptions of the applicant's infractions and behavior. (1) The NCOs wrote, "On various occasions [Applicant] has been late for duty...On 28 August 1996, [applicant] was late again for PT formation. I (SSG went to (the applicant's) room to get him. When we arrived at the office, I gave [applicant] another counseling statement for failure to report. When counseling [applicant], he made the statement, 'I feel everyone is out to get me. I feel like giving up. I have know (sic) reason to live.'" (2) "On 10 September 1996, [applicant] was being counseled again by SGT (Sergeant) for the upkeep of his room. Again, [applicant] said he felt the NCOs were out to get him and if he gets kicked out he would kill himself." (3) Earlier, on 6 September 1996, Major (MAJ) (commander) and SSG had recommended the applicant see someone to talk about his problems, and, on 9 September 1996, the applicant had made an appointment and saw a counselor; following the foregoing events, SSG apprised the counselor of the things the applicant had said. e. On 24 September 1996, SSG counseled the applicant for not going to a doctor appointment, and then lying by telling SSG the appointment had gone well. On 1 October 1996, SGT issued the applicant a quarterly performance counseling; SGT lauded the applicant's improved motivation in PT, as evidenced by the results of the applicant's APFT. SGT also reminded the applicant of the pending disciplinary actions against him, and posited that the outcome depended on the applicant. f. On 8 October 1996, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for having failed to report to the Post Gym, on 25 September 1996; the imposing commander's punishment included reduction to PV2/E-2. g. Effective 1 March 1997, the applicant's chain of command promoted him to PFC/E-3. h. During the period 5 March to 10 June 1997, the applicant's leadership counseled him eight times for the following infractions: (1) 5 March 1997 – applicant failed to be dressed in duty uniform and to have his room in compliance with barracks SOP (standing operating procedure); the applicant's NCO directed the applicant to ready for re-inspections at 1800, 2000, and 2200 hours (2) 5 March 1997 – applicant disobeyed his NCO's lawful order to be ready for re- inspections at 1800, 2000, and 2200 hours: * at 1800, the applicant had a guest in the applicant's room who was smoking, listening to music, and playing video games * at 2200, the applicant was not in his room and his room did not meet SOP standards; the applicant submitted a rebuttal stating, at 2200 hours, he was in his room asleep when his NCO came by; when the NCO knocked on the door and the applicant did not answer, the NCO assumed the applicant was gone (3) 30 March 1997 – applicant reported to work without having shaved. (4) The applicant's leadership counseled him three times with regard to his use of an American Express (AMEX) government credit card: * 18 April 1997 – applicant had failed to pay a balance of $1,200 and, during the period November 1996 to February 1997, the applicant had made a "substantial amount of ATM (automated teller machine) withdrawals"; applicant claimed he had lost the card in August 1996, but never told his NCO * 29 April 1997 – after applicant denied having a balance on the AMEX card, applicant's NCO learned from G-1 that AMEX had contacted applicant in March 1997 and told him he had to pay 10 percent per month on the $1,200 balance (i.e. $120); AMEX had received only $50 from the applicant * 13 May 1997 – SSG counseled the applicant regarding the applicant's misuse of a government credit card and the wrongful appropriation of funds (5) 9 June 1997 – applicant reported to work in a wrinkled uniform and unpolished boots. i. On 25 July 1997, the applicant underwent a separation physical; on his Standard Form (SF) 93 (Report of Medical History), the applicant reported being in good health, and he did not identify any behavioral health concerns. On the applicant's SF 88 (Report of Medical Examination), the examining physician listed Von Recklinghausen's Syndrome as the applicant's sole medical issue. j. On 29 July 1997, the Chief, CMHS provided a Report of Mental Status Evaluation (DA Form 3822-R); the report stated, "Soldier's mental status is essentially within normal limits. He does not present a condition which would warrant a disposition through medical channels." k. On 5 September 1997, 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), paragraph 13-2 (Criteria), chapter 13 (Separation for Unsatisfactory Performance). The commander stated he was recommending the applicant for a general discharge under honorable conditions, but the final decision rested with the separation authority. The commander cited the following infractions as the reasons of his separation recommendation: * On 9 October 1996, the applicant received company-grade NJP for failing to be at his appointed place of duty * The applicant wrongfully appropriated about $1,200 in AMEX credit card charges * The applicant's leadership had counseled the applicant on numerous occasions for failing to be at his appointed place of duty * The applicant had reported for duty in a uniform that did not comply with regulatory standards l. On 10 September 1997, after consulting with counsel (a Judge Advocate General officer), the applicant acknowledged counsel had informed him of the basis for the contemplated separation action, and the applicant affirmed counsel had advised the applicant of his rights and the effect of waiving those rights. The applicant elected to waive consideration of his case by an administrative separation board and chose not to submit statements in his own behalf. m. On 15 September 1997, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on14 October 1997, orders discharged the applicant accordingly. The applicant's DD Form 214 shows he completed 2 years, 3 months, and 17 days of his 4-year enlistment contract. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the award of the National Defense Service Medal and Army Service Ribbon. 5. 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. 6. The applicant argues his leadership unjustly discharged him based on a "bogus charge" of violating security protocols, despite the fact that neither his supervisors nor his 1SG had any proof. In addition, the applicant suffered from depression due to the death of his grandmother, and the negative impacts of his genetic disease (Von Recklinghausen's Syndrome), both of which may have contributed to his separation. a. During the applicant's era of service, commanders could initiate separation action, under chapter 13, AR 635-200, for the following reasons; when: * the individual demonstrated he/she would not sufficiently develop to adequately participate in further training and/or to become a satisfactory Soldier * the seriousness of the circumstances were such that the Soldier's retention would have an adverse effect on military discipline, good order, and morale * the Soldier was a disruptive influence and the causes for a separation recommendation were likely to continue; and * the Soldier's ability to perform duties effectively in the future, to include his/her potential for advancement or leadership, was unlikely b. Before initiating separation action, commanders were required to ensure the Soldier received adequate counseling and rehabilitation. Separation authorities could issue the Soldier either an honorable or an under honorable conditions character of service. c. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his available service record in accordance with published equity, injustice, or clemency guidance. 7. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. The applicant asserts his medical condition and depression after his grandmother’s death impacted his performance. He further states he was not provided legal counsel prior to his discharge. A review of his service record indicates a command referral to behavior health was initiated on 6 Sept 1996. On 29 Jul 1997, he completed a mental status examination and met retention standards IAW AR 40-501. On 1 Aug 1997, he completed a separation physical and his PULHES were all 1’s indicating he met retention standards. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. There is no documented psychiatric diagnoses to consider with respect to mitigation of the misconduct that led to his discharge. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal 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. The Board considered the medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. He was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. The applicant provided post-service achievements or letters of support to weigh a clemency determination. However, the Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, they denied relief. 2. 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. 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the 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. The regulation authorized separation authorities to furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 13 (Separation for Unsatisfactory Performance). (1) Commanders could separate Soldiers for the following reasons, when: * the individual demonstrated he/she would not sufficiently develop to adequately participate in further training and/or become a satisfactory Soldier * the seriousness of the circumstances were such that the Soldier's retention would have an adverse effect on military discipline, good order, and morale * the Soldier was a disruptive influence and the causes for a separation recommendation were likely to continue; and * the Soldier's ability to perform duties effectively in the future, to include his/her potential for advancement or leadership, was unlikely (2) Before initiating separation action, commanders were required to ensure the Soldier received adequate counseling and rehabilitation. Separation authorities could issue the Soldier either an honorable or an under honorable conditions character of service. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008216 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1