IN THE CASE OF: BOARD DATE: 2 February 2023 DOCKET NUMBER: AR20220007807 APPLICANT REQUESTS: * change his character of service from general, under honorable conditions to an honorable discharge * personal appearance via video or phone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 16 May 2022 * General Discharge Certificate, 12 February 1988 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); 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 was told his discharge would be updated to an honorable discharge six months after his separation. He was not informed of the DD Form 149. This information was not provided; he found out from the VA (Department of Veterans Affairs). 3. The applicant has prior service in the U.S. Army Reserve. On 1 April 1987, he enlisted in the Regular Army. He held military occupational specialty (MOS) 31K (Combat Signaler). 4. On 3 April 1987, the applicant was assigned to Headquarters and Headquarters Battery, 3rd Battalion, 19th Field Artillery at Fort Polk, LA. 5. His service record contains a history of counseling by his chain of command for a variety of infractions on/for: * 10 April 1987, missed formation, overslept and missed physical training * 27 April 1987, missed formation, and was not prepared for field training * 1 May 1987, missed formation 6. On 6 May 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for, on or about 6 May 1987 wrongfully appropriating a package of lighters from the Post Exchange (PX). His punishment consisted of 7 days extra duty. 7. On 10 June 1987, the applicant was counseled for disobeying a lawful order, by not adhering to corrective training. 8. On 2 July 1987, the applicant submitted a statement in reference to him stealing from the PX. The statement shows, in part, he was getting a few items for his trip to New York. He had items in his hand so he placed the lighters in his pocket. He paid for the other items and forgot about the lighters in his pocket. He had somethings on his mind, due to his mother being ill and abandoned by his sister. He did not attempt to steal anything. 9. On 7 July 1987, his commanding officer submitted a statement, which shows, in part, the [applicant’s] PX privileges be reinstated and that the evidence and circumstances surrounding the incident found the [applicant] not guilty. 10. His service record contains a history of additional counseling by his chain of command for a variety of infractions on/for: * 31 July 1987, missed formation * 4 August 1987, no motivation, family problems, disapproval of leave request, process to request emergency leave, late to formation * 12 August 1987, late for guard mount * 21 August 1987, disrespect to a noncommissioned officer, disobeyed a lawful order, and making verbal threats * 23 August 1987, disrespect to a noncommissioned officer, and disobeying a lawful order 11. On 27 August 1987, the applicant’s Platoon Sergeant, Sergeant First Class A____ recommended the applicant for a Field Grade Article 15. On 23 August 1987, the [applicant] disobeyed a lawful order, and disrespected an NCO. The applicant was transferred to C Battery, 3rd Battalion, 19th Field Artillery on 25 August 1987. 12. On 1 December 1987, the applicant was promoted to private first class. 13. His service record contains more counseling by his chain of command on/for: * 17 December 1987, for arriving at formation at the same time as the first sergeant * 18 December 1987, for making an incorrect marching movement 14. A DA Form 3975 (Military Police Report), 8 January 1988, shows, a complaint against the applicant for disrespect towards an NCO, with provoking speeches or gestures at the Magistrate Court Room in Fort Polk, LA. 15. A summary of a traffic accident report shows on 8 January 1988, the Provost Marshall Office (PMO) was notified of the above incident by Sergeant (SGT) P____. SGT P____ stated that while performing bailiff duties at the above location, contact made with applicant who was creating a verbal disturbance in the rear of the courtroom. [Applicant] was advised to refrain from using profane language at which time he became loud and belligerent, verbally stating obscene language and gesturing to commit bodily harm toward SGT P____. [Applicant] was apprehended and transported to the PMO where he was advised of his legal rights, cited, and released to his unit. 16. A DA Form 2823 (Sworn Statement) submitted by SGT P____, on 8 January 1988, which shows, in part, the applicant stated there was not enough military police in the courtroom to take him to jail and gesturing the exact punches he would throw. The court then convened and the [applicant] and an unidentified male then started to disrupt the court session by laughing, talking out load and verbally stating abusive language among themselves. SGT P____ advised them to refrain from using the abusive language. [Applicant] started talking in a loud tone voice, he was escorted to the front of the courtroom to be verbally admonished by the judge. [Applicant] was escorted back to his seat where he became loud and belligerent. Upon being apprehended, he became loud in an attempt to attract attention, [applicant] was handcuffed. In an attempt to place the applicant in the car applicant started to push against SGT P____. [Applicant] was transported to the PMO, he was uncooperative with MP at the station. He was further processed at the PMO and released to his unit. 17. A DA Form 2823, submitted by V___ P____, on 9 January 1988, which shows, in part, she was in the magistrate office to testify on a case. She witnessed [applicant] in the back of the court talking loudly and saying he would kick the MP’s a--. Then court was called into session. 18. The applicant’s record shows a partial statement submitted by applicant in which he states him and Private M___ sat in the back of the courtroom and were discussing cases that were taking place. At that time, they were approached by the MP SGT P___, who stated, they had two choices either shut the f-- up or get out. Applicant stated 5 or 10 minutes later some young ladies was brought to the judge for a no license charge. Applicant asked Private M___ how much was the charge. An MP approached the bench, came back to SGT P__ and SGT P__ took the applicant to see the judge. The judge told him that he was told he was making noise in his courtroom, and for him to take a seat and be quiet. 19. A DA Form 2823, submitted by H____ Q____, on 13 January 1988, which shows, in part, the court was in session at the time of the disturbance. He witnessed SGT T___ attempt to handcuff the applicant. The left cuff was on the applicant, and the applicant raised his right hand backwards with a clenched fist. At which time SGT T___ pulled the arm back in a hammer lock fashion and put the other cuff on the applicant. 20. A Memorandum for Record, submitted by the Prosecutor, Captain A____ Jr., 14 January 1988, which shows, in part he witnessed the disturbance made by the applicant, and the warning from the judge. The MP informed him that they wanted to apprehend the [applicant] for disrespect to an NCO. He told the MP that he had no objection, and that he would reschedule the [applicant’s] trial date. 21. A Memorandum, submitted by, First Lieutenant S___, Officer in Charge of Military Police Investigation, 14 January 1988, which shows, in part, the preliminary investigation indicates that the apprehension was justified and recommended the investigation closed. 22. A DA Form 4856, 19 January 1988, which shows, in part, the [applicant] was having back-to-back problems. Current problems are being worked on. Do not promote until improvements are made. 23. A DA Form 3822 (Report of Mental Status Evaluation), 26 January 1988, which shows, in part the applicant was cleared for administrative separation. There is no evidence of mental disease or defect which would warrant a disposition through psychiatric channels. 24. On 1 February 1988, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), paragraph 14-12b (patterns of misconduct). The reason for his proposed actions is due to [applicant's] continued misconduct, disrespect to an NCO and multiple failure to reports (FTRs). The commander recommended an honorable or general discharge and advised the applicant of his rights. 25. On 1 February 1988, the applicant acknowledged receipt of his commander's intent to initiate separation action against him for patterns of misconduct. He consulted with counsel who advised him of the basis for the contemplated action to separate him under AR 635-200, Chapter 14-12b, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He opted to make a statement on his own behalf. He acknowledged: * he understood the effect of any waiver of rights; of the least favorable discharge he may receive as a result of the action; and the effect of each type of discharge/characterization of service * he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he further understands that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both federal and state laws * he understood that, as the result of issuance of a discharge certificate/character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes that consideration by either board does not automatically imply upgrading * he understood that he may until the date of the separation authority orders directs or approved his separation withdraw the waiver of any of the above right and request that an administration board if authorized hear his case 26. His statement shows, in part, he is writing the letter for retention on active duty. He has been on active duty for 10 months. His actual soldiering did not begin until when he was transferred to C Battery, 4th Battalion, 1st Field Artillery. He was promoted for being a hard worker during November 1987 rotation to NTC. Since arriving to C Battery, he has not received any unfavorable counseling, and has received several promote ahead of peers in the suggestion part of his counseling statements. He will enclose letters of support from his section chief, Staff Sergeant (SSG) S___ and his co-worker Specialist (SPC) C___. If retention is not possible, he will like an honorable discharge. He has children to support and does not want the stigma of less than an honorable discharge. (1) SSG S____ submitted a rebuttal letter on the applicant’s behalf which shows in part, he has been his supervisor since 29 August 1987. Since the applicant’s arrival, he arrived at formation late only one time, and made a one failure to make the proper facing movement. On 10 October 1987, he was picked up for driving without a license. He then went to court and received the disrespect to an NCO. His job performance remains good along with his appearance, but his physical conditioning and attitude has dropped. [Applicant] was counseled on possible problems which caused the drop. Under his supervision [applicant] is a good worker and has the potential to be a good soldier. (2) SPC C____ submitted a rebuttal letter on the applicant’s behalf which shows, in part, at first things were rough between them. Applicant developed a bad attitude due to his last unit. After a couple field exercises and a rotation to NTC [applicant’s] work habits improved. 27. The immediate commander’s initiation of separation action memorandum against the applicant is void from his records. 28. On 3 February 1988, the intermediate commander recommended the applicant be separated under chapter 14-12b of AR 635-200 and that rehabilitative efforts be waived. He recommended a general discharge. 29. On 9 February 1988, the separation authority approved his discharge under the provision of AR 635-200, Chapter paragraph 14, and directed the issuance of a general discharge. 30. On 12 February 1988, the applicant was discharged. His DD Form 214 shows he was discharge in accordance with chapter 14 of AR 635-200 (Personnel Separations) with an under honorable conditions (Separation Code JKM/JKE and Reentry Code 3). His DD Form 214 shows he completed 10 months, and 12 days of net active service. 31. There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year statute of limitations. 32. By regulation (AR 635-200), chapter 14 states action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 33. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was/was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the pattern of misconduct leading to the applicant’s separation and the lack of sufficient post-service character evidence to show the applicant has learned from and grown from the incidents leading to his separation, the Board concluded there was insufficient evidence to change the applicant’s characterization of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx 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, U.S. Code, 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 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 3. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be 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. 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant’s do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007807 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1