IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210014992 APPLICANT’S REQUEST: * in effect, upgrade his under other than honorable conditions discharge to honorable * correct his DD Form 214 (Report of Separation from Active Duty) by removing the 10 days of lost time from items 21 (Time Lost) and 27 (Remarks) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) 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 his leadership unjustly accused him of being absent without leave (AWOL) for 10 days. What really happened was that his sergeant told him to stay back from training as the company deployed on a field training exercise; he obeyed his sergeant's instructions. The applicant argues that it is the chain of command's responsibility to account for its Soldiers, but the company failed in the applicant's case; instead, they wrongly accused him to cover themselves. The applicant maintains, "A search of my military record will reveal that this false accusation is the only negative thing in my record." The applicant states he was a young black Soldier whose white sergeants refused to listen to him when he said he was only following orders. 3. The applicant's service records show: a. On 21 October 1977, the applicant enlisted into the Regular Army for 3 years; at his entrance on active duty, he held the rank/grade of private (PV1)/E-1, and he was 18 years old. Upon completion of initial entry training and the award of military occupational specialty 11B (Infantryman), orders assigned him to an infantry battalion in Hawaii; he arrived at his unit, on 22 February 1978. b. On 6 March 1978, the applicant's noncommissioned officer (NCO) leadership counseled him for not showing up for fireguard; on 8 March 1978, the applicant accepted nonjudicial punishment (NJP) for failing to report to the charge of quarters for fire guard duty. c. Between 16 March and 21 April 1978, the applicant's NCO leadership counseled him for five incidents of indiscipline: (1) 16 March 1978 – Applicant failed to report to the 0600 physical training (PT) formation and the 0830-morning formation. (2) 25 March 1978 – Applicant failed to show up for fireguard; on 27 March 1978, he was absent from duty between 0900 until 1020 hours. (3) 30 March 1978 – Corporal (CPL) woke the applicant and told him to report to Sergeant (SGT). When CPL went back to check, he again found the applicant asleep; he told the applicant there was a formation outside. CPL left and returned once more, only to discover the applicant was still asleep. When CPL kicked the applicant on the boot, the applicant jumped up and said, "F__ you and I'm going to whip your m__f__ a__." The applicant's squad leader was also present; when CPL ordered the applicant to be at ease and to fall out for the formation, the applicant replied, "F__ y__, and I'll whip your m__f__ a__ too!" CPL subsequently issued the applicant a counseling statement for his behavior, but the applicant refused to sign the form and threw the statement on the floor. (4) On 8 April 1978, the applicant's platoon sergeant counseled the applicant because his bunk was unmade and his clothes were strewn around under the bunk; in addition, the applicant's boots were muddied and his locker was dirty. (5) On 21 April 1978, the applicant's team leader issued him a counseling statement because, at the 0820 formation, the applicant had "failed to make any attempt to put polish on his boots." d. At some point prior to May 1978, the applicant entered the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP); (the applicant's available service record does not show the reason for his enrollment or whether he self-referred or the command referred him). In or around May 1978, ADAPCP prepared a follow-up report that showed the applicant had been participating in both group and individual counseling/therapy; the applicant's command provided an evaluation of the applicant and reflected the applicant's efficiency, conduct and progress as "Fair." e. On 18 May, and again on 8 June 1978, the applicant's NCO leadership prepared records of counseling pertaining to the applicant's conduct. * On 18 May 1978, CPL stated he had instructed the applicant to work on his personal gear until 1400 hours, then (go to) organized athletics; despite his efforts to find the applicant, CPL could not locate him anywhere in the company area * On 8 June 1978, the applicant's platoon sergeant stated the applicant had been AWOL for 24 hours; the platoon leader noted that, on 5 June 1978, the applicant had participated in group counseling, wherein they discussed being at the right place on time; the applicant offered an excuse, but it was invalid * The applicant submitted a statement, in which he wrote he had been late because his car would not run at all, and he had no way in; that morning, at 0430 hours, the car cut off on him again, but this time he was able to restart it and come to the company area f. On 16 June 1978, the applicant accepted NJP for three specifications of failing to report to his place of duty on time: respectively, to the 0600 PT formation, on 7 June 1978; the 0830-morning formation, on 7 June 1978; and the 0700 morning formation, on 8 June 1978. g. On 20 June 1978, the applicant's squad leader counseled him for failing to show up for a urinalysis test; his team leader counseled him for arriving late for the 0820 formation and for wearing a belt buckle that was not subdued. On 29 June 1978, the applicant accepted NJP for failing to report for fireguard, on 26 June 1978. On 5 July 1978, the applicant's squad leader counseled him after the applicant left his gas mask unsecured. h. During August 1978, the applicant accepted NJP on two occasions: * 3 August 1978 – for disobeying a Sergeant First Class (SFC)'s order to get a haircut and shave * 16 August 1978 – for failing to report to the Orderly Room for extra duty, on 7 August 1978, and for breaking restriction, on 7 August 1978 i. On 8 September 1978, the applicant's company commander advised him, via memorandum, of his intent to initiate separation action against the applicant, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel); the commander's basis was the applicant's frequent incidents of a discreditable nature with military authorities. The commander also prepared his recommendation for the separation authority, on 8 September 1978, and he included a request to waive the regulatory requirement for rehabilitative transfer and statements by the commander and three of the applicant's NCOs. (1) The commander submitted a certificate, in which he explained his rationale for the separation action; he stated the applicant was "one of the worst Soldiers I have ever observed in eleven years of military service. His personal appearance and living area (are) substandard. He is continually late for formations and fails to follow instructions. [Applicant] is a physically and mentally capable Soldier, however, he is unwilling to follow orders, obey regulations, and perform his duty. He has no respect for the NCOs or officers appointed over him. [Applicant] is a classic example of a substandard Soldier who does only what he feels like, only when he wants to do it." "[Applicant's] continued active service will only exert a negative influence on the Soldiers associated with him." (2) The statements by the three NCOs described the applicant as requiring counseling on an almost daily basis for such things as needing to shave or getting a haircut, and he was continually arrived late for formations or work. Each time the NCOs talked with the applicant about a solution, the applicant would say, "I will improve," but he never showed any progress. j. On 11 September 1978, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action and informed him of his rights and the effect of waiving those rights. The applicant chose to appear personally, with counsel, before a board of officers, and he elected to submit a statement in his own behalf. In his statement, the applicant expressed his desire to remain in the Army so that he would not have to return to the hard life he had joined the military to avoid. He declared, "I truly believe that I can do a better job if I can get away from the company that I am in now and start on a clean record." k. On 14 September 1978, the applicant accepted NJP for failing to report to ADAPCP. On 22 September 1978, the applicant accepted NJP for failing to report for extra duty, for failing to report for morning formation, and for stealing a brass key chain, valued at $1.60, from the Post Exchange. l. On 2 November 1978, the applicant's unit reported him as AWOL. He returned to military control, on or about 8 November 1978, but went AWOL again, on 9 November 1978; the applicant returned, on or about 13 November 1978. m. In November 1978, six of the applicant's NCO leadership submitted sworn statements. In addition to the NCOs recounting the applicant's past incidents of misconduct (previously addressed in NJP actions and counseling statements), Staff Sergeant (SSG) reported that, on 2 November 1978, the applicant did not return to duty after being placed on 48-hours' quarters. SSG stated the applicant remained absent and missed formations, on 3 and 6 November and, on 5 November 1978, he failed to report for duty as a Charge of Quarters Runner. n. On 12 December 1978, the applicant again consulted with counsel and opted to change his elections; he decided to waive his personal appearance before a board of officers, and submitted the following statement: (1) The applicant asked the separation authority to issue him an honorable discharge, or at least a general discharge under honorable conditions; he stated that any other character of service would seriously prejudice him, and he felt the separation authority should consider certain facts about his personal history that would explain why he warranted a better character of service. (2) The applicant disclosed that, before coming into the Army, he was always on the corner fighting a losing battle against life; he did not know much about life and, for him, life was just another party. His family was small, but before his father could "get it together," it was all too much for his father to handle; the family was "living on the bottom line, but with a little help from a few people, we got off the ground and started to live like people." During this period, the applicant notes he was too blind to see what was happening, but he recognized something was wrong with him. (3) He entered the Army to get away from the life he had known, and to see some of the world, but he had made some bad moves and did a few wrong things that made him look bad to a lot of people. Although the Army may not have made him a Soldier, the applicant affirmed it had made him a man, and he now knew which way to go and how to make himself a better person. He asked the separation authority for a discharge under honorable conditions so he could start fresh and make changes to improve things for himself and his people. o. On 20 December 1978, the applicant accepted NJP for two specifications of breaking restriction (respectively, on 26 and 27 November 1978), and for failing to report, on 3 December 1978, for extra duty. After the imposing official found the applicant guilty and administered the punishment, the applicant filed an appeal, but, on 15 January 1979, the appellate authority denied the applicant's petition. p. On 10 January 1979, the applicant resubmitted his elections, again waiving his rights to appear personally with counsel before a board of officers. He indicated he was submitting statements in his own behalf, but the applicant's service records are void of any additional statements the applicant may have provided. q. On 12 January 1979, the separation authority approved the commander's separation request and directed the applicant's under other than honorable conditions discharge; on 22 January 1979, orders discharged the applicant accordingly. r. The applicant's DD Form 214 shows he completed 1 year, 2 months, and 22 days of his 3-year enlistment contract. Item 21 (Time Lost) and item 27 (Remarks) indicate the applicant incurred lost time from 2 through 7 November and 9 through 12 November 1978 (10 days total). Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the award of a marksmanship qualification badge. 4. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. During the applicant's era of service, commander could initiate separation action against Soldiers who displayed a pattern of misconduct; this included those Soldiers who were involved in frequent incidents of a discreditable nature with military authorities. An under other than honorable conditions character of service was commonly given for Soldiers discharged under this provision. b. AR 635-5 (Separation Documents), in effect at the time, stated item 21 of the DD Form 214 showed time lost, as defined by Title 10, USC, section 972 (Enlisted Members: Required to Make Up Time Lost). Section 972, Title 10 USC, stated enlisted Soldiers who were absent from their units without proper authority for more than one were liable to serve the period of the absence, and to have that period added to their term of service. c. AR 15-185 (ABCMR), currently in effect, states the ABCMR begins its consideration of each case with the presumption of administrative regularity; to overcome this presumption, the applicant has the burden of submitting enough supporting proof (in the form of witness statements and other documentary evidence) to show that an error or injustice occurred. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. KURTA FACTORS:? Memorandum, Office of the Under Secretary of Defense, published 25 August 2017 states, the BCM/NRs will consider Veterans petitions for discharge relief when the application is based on whole or in part on matters relating to mental health conditions, including PTSD, TBI, Sexual Assault, or harassment. The Veteran's testimony alone, oral or written, may establish the existence of a condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. The Board is to determine requested relief is warranted, unless the Board makes an affirmative determination, by a preponderance of evidence, that the mental health condition(s) and/or experience(s) does not excuse or mitigate the discharge. a. Did the applicant have a condition(s) or experience(s) that may excuse or mitigate the discharge?? Answer provided via review? ? b. Did the condition(s) exist, or experience(s) occur during military service??? Answer provided via review? ? c. Does the condition(s) or experience(s) excuse or mitigate the discharge??? Answer provided via review? ? d. Does the condition(s) or experience(s) outweigh the discharge? See "BOARD DISCUSSION" of this Record of Proceedings.???? BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post- service achievements or letters of support to weigh a clemency determination. Evidence shows the applicant had two periods of AWOL and the Board found no error on the applicant’s DD Form 214 that warranted correction. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, the Board denied relief.. 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 (AR) 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. 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. Paragraph 14-33 (Other Misconduct). Commanders identified Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. An under other than honorable conditions character of service was normally given for Soldiers discharged under this provision. 3. AR 635-5 (Separation Documents), in effect at the time, stated item 21 of the DD Form 214 showed time lost, as required by Title 10, USC, section 972 (Enlisted Members: Required to Make Up Time Lost). Section 972, Title 10 USC, stated enlisted Soldiers who were absent from their units without proper authority for more than one were liable to serve the period of the absence, and to have that period added to their term of service. 4. AR 15-185 (ABCMR), currently in effect, states the ABCMR begins its consideration of each case with the presumption of administrative regularity; the applicant has the burden of proving an error or injustice by the preponderance of the evidence. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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// ABCMR Record of Proceedings (cont) AR20210014992 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1