IN THE CASE OF: BOARD DATE: 8 June 2022 DOCKET NUMBER: AR20210017057 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Signature Page * Applicant Statement * 5 Letters of Support * ARBA Letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100012746 on 9 November 2010. 2. The applicant states in effect, that in 1992 he was stationed at Fort Stewart, GA. He lost his grandfather and another close relative, but he kept his head up. He had a great relationship with his noncommissioned officer in charge (NCOIC) and company commander, his name was . The applicant was the talk of the company, because he had one of the fastest 2 mile run times, and good physical training scores. a. The day of the 2 mile run his company commander Captain/CPT , told the applicant a black man will beat him at anything the only thing a black man could do is tie his shoes. In his mind, he said the applicant was going to show him and he did. He beat him in the company run and since that day the company commander was after him. CPT harassed him every day, he would come into the mess hall, search for him and see if he had drugs on him. The applicant went through a change of command around that time, that made CPT even angrier with him. The applicant had gotten permission to go to his grandfather’s funeral, when he returned, CPT , said he was absent without leave (AWOL), but that did not workout because it was overturned by Colonel/COL . CPT did not like that. Another event was when he and a white Soldier rented a car. The applicant payed part for the Soldier and he did not return the car on time so the applicant got into trouble for that once again COL overturned CPT’s actions towards him. b. He reached out to the Judge Advocate General (JAG) because this was getting out of hand. He got no help. Things got worse. CPT would go to his house and search his house and cars and he would make up lies to destroy him. He had a nervous breakdown in. He was sent to Hospital. He wanted to kill himself because of all the harassment. That is why he was AWOL. He was in a mental hospital. He never wrote no bad checks. He was railroaded by CPT. He feels like everything he did to him was racially motivated. He is a good person and he wanted a 20 plus (year) military career, but that was taken from him. He is asking the review board to change his discharge to an honorable. 3. The applicant provides: a. Two letters of support from his church that state, the applicant is an active member of a church and over 10 years has grown spiritually, personally, exhibited good moral character and is a member in good standing. b. His army NCOIC states she never received a bad report on him not reporting to work on time, not accomplishing his assigned tasks, being insubordinate toward his seniors, or causing (habit) on shift amongst his peer(s). He had to take leave on multiple occasions because for emergency reasons and both of emergencies happened to be during the time they were preparing for a field exercise. Wight him having a legitimate excuse to take leave during the time of those two field exercises caused the executive officer (XO) and the commander to be upset with him and from there it seems as if they began to pressure him about everything. On one occasion the NCIOC was in charge of inspecting his vehicle prior to his leave ensuring he had current insurance coverage, vehicle registration was current, and all mechanicals were operating properly prior to him traveling. During the inspection their commander CPT who's professional command field was in Military Intelligence (Ml) took over the inspection and began searching the applicant’s car as if he had been pull over for weapons or drugs. The both of us questioned him on why he was searching the car to that degree but, he continued without an answer. After the situation with the commander, the applicant sought guidance on the commander's actions towards him from the base Judge Advocate General (JAG) office for which she agreed to and wrote a sworn statement of truth on the applicant’s behalf. As his former NCOIC/SFC she is thankful that she had the pleasure of him being one of her Soldiers; being a part of her team. He definitely didn't deserve an (all) Other Than Honorable discharge. He was a true team player and deserved better, an Honorable (discharge). c. A letter from the applicant’s friend of 9 years, states, the applicant is honest, dedicated and a consistent man of his word. The applicant visits senior citizens in their community; supplies meals for those in need and makes himself available to serve during the COVID pandemic in any capacity BEFORE a vaccine was made available. d. A councilman, states he has known the applicant for 15 years and he has displayed a high degree of integrity, responsibility, and willingness. He is a dependable team player and has excellent judgement in decision making. He is dedicated, hardworking and never leaves a task unfinished. He has excellent communication skills with people of all ages and is always trying to be an encouragement to all who know him. He is a man of great moral character. He is a valuable asset to anyone who knows him. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 December 1990. His military occupational specialty was 94B (Food Service Specialist). b. He was counseled on numerous occasions for various reasons. His DA Form 4856 (General Counseling Form) shows he signed a counselling form on 11 May 1993 from his first sergeant/1SG for: * from 30 October to 2 November 1992, he was AWOL * 23 November 1992, he failed to pay a utility company bill in the amount of $611.61 * 22 January 1993, he rented a car in another Soldier's name and did not pay for it * 25 February 1993, he was disrespectful and threatened other Soldiers * 10 March 1993, he was disrespectful and disobeyed a lawful order; threatened two individuals; was disrespectful to the noncommissioned officer who was in charge * 11 March 1993, a loaded weapon was found in his car; he was denied advancement to the grade of specialist/E-4 * 12 March 1993, he was picked up for terroristic threats and acts * from 6 to 7 April 1993, he was AWOL * other counseling’s: * 11 May 1993: he was late for duty and the above * 16 May 1993: failure to report to duty * 28 May 1993: he wrote a check on a checking account that he knew was closed * 15 June 1993: failed to report for extra duty c. On 17 May 1993, he was reported in an AWOL status (he failed to report for duty) and returned to duty on 20 May 1993. d. On 26 May 1993, the applicant underwent a mental status evaluation because he was being considered for discharge for misconduct. He was found to have the mental capacity to understand and participate in the proceedings, met retention requirements, and was cleared for administrative action. e. On 28 June 1993, the applicant acknowledged receipt of his commander's notification that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14- 12b, for a pattern of misconduct. His commander also informed him he was recommending his service be characterized as under other than honorable conditions (UOTHC). f. On 13 July 1993, the applicant consulted with legal counsel, and he was advised of the basis for the contemplated separation for a pattern of misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment. The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions and that as the result of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws. He indicated that he would waive consideration of his case by an administrative separation board (ASB) if he received no less than a general, under honorable conditions discharge (GD). g. Following this acknowledgement, the commander initiated separation action against the applicant for misconduct in accordance with AR 635-200, paragraph 14-12b. His chain of command recommended approval. His commander opined that his AWOL, failure to pay just debts, failure to obey a lawful regulation, driving on a suspended license, communicating a threat, disrespect, disobeying an order, failure to repair(s) (FTRs), simple battery, criminal trespassing, and carrying a concealed weapon. The commander requested further rehabilitative requirements be waived. h. On 13 July 1993, he submitted a statement (Request for Approval of Conditional Waiver) on his own behalf requesting approval of a GD on the basis that with a UOTHC discharge he would lose the money he had invested toward education benefits. This is a punishment. One of the primary reasons he joined was to get the educational benefits which the Army had to offer. The imposition of an other than honorable discharge would not accomplish anything other than to amplify the detrimental effect of being discharged from the service. He had been a hardworking Soldier. Although there had been occasion when he had been in some sort of trouble or his performance had not met the mark, he did not believe that his performance should be classified as other than honorable. Although he agreed that he no longer needed to be in the military, he needed to be able to get some sort of work once he was out. With a general discharge, at least he had a shot at being a productive member of society. i. On 6 August 1993, the applicant again consulted with legal counsel and he was again advised of the basis for the contemplated separation for a pattern of misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment. He waived his rights to consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and his right to submit statements on his own behalf. j. On 23 August 1993, the applicant failed to report for 0630 formations. k. On 25 August 1993, his intermediate commander opined the applicant was notified for separation under the provisions of AR 635-200, Chapter 14, Paragraph 14- 12b, Patterns of Misconduct because of his AWOL, failure to pay just debts, failure to obey a lawful regulation, driving on a suspended license, communicating a threat, disrespect, disobeying an order, failure to repair(s) (FTRs), simple battery, criminal trespassing, and carrying a concealed weapon. He waived his right to an administrative separation board. His chain of command recommended an under other than honorable conditions discharge. His misconduct warranted an under other than honorable discharge. l. On 25 August 1993, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed that his service be characterized as UOTHC and that he be reduced to the lowest enlisted grade private/E-1. m. Orders 163-19, dated 27 August 1993, Headquarters, 24th Infantry Division, Fort Stewart, reassigned him to the transition point for separation processing and discharged him. Date of discharge 1 September 1993. n. He was discharge on 1 September 1993. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with paragraph 14-12b of AR 635-200 with an under other honorable conditions characterization of service. He completed 2 years, 8 months, and 16 days of active service. He had lost time from 6 April 1993 to 6 April 1993; 17 May 1993 to 19 May 1993; and 23 August 1993 to 1 September 1993. It also shows he was awarded or authorized: Army Achievement Medal (1st oak leaf cluster), Army Service Ribbon, National Defense Service Medal, and Overseas Service Ribbon. o. On 16 July 1997, the Army Discharge Review Board (ADRB), determined that he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge. 5. On 10 November 2010, the ABCMR, denied his request for an upgrade of his under other than honorable conditions discharge to a general discharge. The Board determined: a. The evidence of record does not support the applicant's request for upgrade of his UOTHC discharge to a GD. b. The applicant has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings against him that led to his discharge or that his rights were not protected throughout the proceedings. c. Based on his record of indiscipline, which includes being AWOL, threats against other Soldiers, and financial irresponsibility, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to a general discharge (GD). 6. By regulation (AR) 635-200, paragraph 14-12b, in effect at the time, states members are subject to separation under this provision for a pattern of misconduct. A pattern of misconduct consisting of one of the following (1) Discreditable involvement with civil or military authorities; or (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found, in the UCMJ, Army regulations, civil law, and time-honored customs and traditions of the Army. 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. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) does not contain any behavioral health diagnoses nor treatment. His hardcopy medical records were not available for review. A review of his service record indicates he completed a mental status evaluation (26 May 1993) and separation physical (1 Jun 1993) and he met retention standards IAW AR 40-501. 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. The applicant asserts the harassment from his commander was the cause of his AWOL. 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 are no diagnosed psychiatric diagnoses to consider with respect to mitigation. Harassment by a commander is not a mitigating factor for driving on a suspended license, failure to pay debts, battery, carrying a concealed weapon, nor communicating a threat. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) No (3) Does the condition or experience actually excuse or mitigate the discharge? (a) No (4) Does the condition or experience outweigh the discharge? (a) No BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 medical review, the Board concurred with the medical opinion finding no diagnosed psychiatric diagnoses to consider with respect to mitigation. The Board agreed harassment by a commander is not a mitigating factor for driving on a suspended license, failure to pay debts, battery, carrying a concealed weapon, nor communicating a threat. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The applicant provided letters of reference in support of a clemency determination but no evidence of post-service achievements since his discharge, the Board considered his charter letters. However, Base on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust and that reversal on the previous determination is not warranted. Therefore, relief was denied. 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: 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. ADMININSTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending1 September 1993. As a result, amend his DD Form 214 by adding: Korea Defense Service Medal. REFERENCES: 1. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separation) 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. Paragraph 14-12b, in effect at the time, states members are subject to separation under this provision for a pattern of misconduct. A pattern of misconduct consisting of one of the following (1) Discreditable involvement with civil or military authorities; or (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found, in the UCMJ, Army regulations, civil law, and time-honored customs and traditions of the Army. 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. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 3. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 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 based on 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) AR20210017057 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1