IN THE CASE OF: BOARD DATE: 2 February 2023 DOCKET NUMBER: AR20220008216 APPLICANT REQUESTS: * upgrade of his characterization of service from an under other than honorable conditions discharge to an honorable discharge * change the narrative reason for separation to “Secretarial Authority” * change the separation program designator to JFF; and reenlistment eligibility (RE) code to RE-1 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 2 May 2022 * Field Communication Electronics Equipment Repair Course, 9 February 1977 * Counsel letter, undated * Multiple letters * Army Discharge Review Board Case Report and Directive * Army Discharge Review Board letter, 14 September 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Austin Community College, Electric Powered Auto Manufacturing Practice, 6 April 1981 * National Institute for Automotive Service Excellence, July 1987 * Multiple Tremont School of Judo Certificates * Fire Technician Certification, undated * Martial Arts Connection Certificate, 10 July 2005 * Bureau of Community Education * Health Academy, 13 September 2011 * Resume * DA Form 2-1 (Personnel Qualification Record) 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’s counsel states: a. The changes to the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) should be made, due to injustices and errors. Applicant lost his motivation to excel as a Soldier due to his command harassing him, calling him racist names, and singling him out for punishment b. After his discharge he obtained several degrees and certifications to build a successful career in the automotive industry. [Applicant] was assigned to 1st Calvary Division where he repaired radios and communications equipment in helicopters, vehicles, armored personnel carrier, and tanks. Not too long after he reported to his command, he was physically struck by a sergeant first class. He did not report the non- commissioned officer because he knew it would destroy his career. c. [Applicant] was also concerned that he would be retaliated against if he pressed charges. Early in his time at 1st Cavalry Division, he got in trouble for being late for work. He was then identified as a "problem child" in his command. From then on, he was often punished for very minor issues or infractions to set as an example to the other Soldiers. Other members of his command would engage in the same conduct as him and not be punished. d. Additionally, he was often called racist names by his fellow Soldiers and superiors. He feared retribution if he said anything and just accepted it because he felt it was the only thing he could do. All this negative conduct made him feel like he was serving in a hostile environment and took away his motivation to excel as a Soldier. e. He requested to be transferred out of 1st Cavalry Division so he could have a chance for a fresh start and to rehabilitate his career. His request was denied on the purported basis that the command could not give up a communications Soldier. This made no sense because his command described him as terrible Soldier at his administrative separation hearing. (See full statement). 3. On 17 September 1976, the applicant enlisted in the Regular Army. He completed training and was awarded military occupational specialty 31V (Tactical Communication System Operator Mechanic). 4. On or about 17 February 1977, he was assigned to Headquarter and Headquarters Troop and then A Troop, 1st Squadron, 9th Cavalry Regiment, 1st Cavalry Division, Fort Hood, TX. 5. On 19 October 1977, the applicant was counseled for laying down his rifle and M17 gas mask during an alert on 18 October 1977. He was not keeping them secure. When told to pick them up the applicant talked back. 6. On 23 November 1977, the applicant received a dishonored check notification issued by the Army and Air Force Exchange Service in the amount of $10.48. 7. On 5 January 1998, the applicant’s command was notified of two dishonored checks, written by the applicant, on 18 November 1977, in the amount of $10.48, and on 17 December 1977, in the amount of $2.00. 8. His service record contains a history of counseling by his chain of command for a variety of infractions, including on/for: * 12 January 1978, writing two dishonored checks to the Fort Hood Post Exchange * 26 April 1978, falling out of physical training formation prior to the run * 9 August 1978, for speeding on 28 July 1978 * 29 August 1978, for missing formation * 30 August 1978, for missing formation, not shaving, and being absent from his place of duty * 12 September 1978, for not shaving, and boots not shined 9. On 19 September 1978, he accepted non-judicial punishment (NJP) under Article 15, UCMJ for failure to be at his place of duty on or about 30 August 1978. His punishment consisted of reduction to the grade of private E-2, suspended until 18 December 1978, and 7 days extra duty. 10. On 21 September 1978, the applicant was counseled for missing physical fitness formation, work formation, and not arriving for work until 0855 hours. 11. A Standard Form 600 (Health Record), shows, in part, on 22 September 1978, the applicant visited the Community Mental Health Activity, with a chief complaint of sleeping, and situational stress, no medications noted. 12. His service record contains additional counseling by his chain of command for a variety of infractions, including, on/for: * 3 October 1978, for missing formation and the annual physical fitness test on 29 September 1978 * 3 October 1978, missing physical training formation and not at his place of duty * 12 October 1978, missing physical fitness formation 13. On 17 October 1978, he again accepted NJP under Article 15, UCMJ for failure to be at his place of duty on or about 29 September and 3 October 1978. His punishment consisted of forfeiture of $92.00 pay, reduced to the grade of private E-2, suspended 60 days, and 14 days extra duty. 14. On 6 February 1979, he accepted NJP under Article 15, a third time for failure to be at his place of duty on or about 29 and 30 January 1979. His punishment consisted of forfeiture of $109.00, reduced to the grade of private E-2, suspended 60 days. 15. On 17 March 1979, the applicant’s duty status changed from present for duty (PDY) to absent without leave (AWOL). 16. On or about 19 March 1979, his duty status was reported as PDY. 17. On or about -- March 1979, he accepted NJP under Article 15 a fourth time for being absent without authority on or about 17 March 1976 and remained so absent until on or about 19 March 1979. His punishment consisted of reduction to private, forfeiture of $97.00 pay for one month, and 14 days restriction. 18. On 23 April 1979, the applicant’s duty status changed from PDY to AWOL, and on or about 26 April 1979, his duty status was reported as PDY. 19. On 2 May 1979, he accepted NJP under Article 15, UCMJ for being absent without authority from on or about 23 April 1979 to on or about 26 April 1979. His punishment consisted of forfeiture of $100.00 for one month and perform correctional custody at the 1st Cavalry Division Correctional Custody Facility for a period of 20 days. 20. The applicant submitted an appeal letter, 3 May 1979, which shows in part, he has two car payments, if money is deducted from his pay that will result in his car being repossessed. On the day he was absent he called in. On 23 April, at 0600 hours he was returning from Austin and his car had transmission problems. He goes to every weekend to clear his head due to problems he has in his squadron. He told his platoon sergeant. Sergeant First Class said, “okay but hurry back.” He tried and had no intention of going AWOL. He has four months left in the military. The first sergeant is trying to process him out with a Chapter 14. He does not think he should be discharged, because he has been dealing with harassment. 21. On 22 May 1979, 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] reliability is completely unsatisfactory. Excessive history of being late, missing or AWOL. He failed to respond to personal guidance, counseling or UCMJ action. The commander recommended a general discharge and advised the applicant of his rights. 22. On 22 May 1979, the applicant acknowledged receipt of his commander's intent to initiate separation action against his 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 requested consideration of his case before a board of officers and personal appearance before such board. He also requested representation and acknowledged: * 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 23. On 22 May 1979, the applicant's immediate commander-initiated separation action against the applicant under chapter 14-12b of AR 635-200 for a pattern of misconduct, frequent incidents of a discreditable nature with civil or military authorities. The commander stated the applicant’s personal reliability is completely unsatisfactory; he has an excuse for being late, missing, or being AWOL. He has failed to respond to counseling. 24. DA Form 1574 (Report of Proceedings by Investigation Office/Board of Officers), 27 July 1979, shows in part, the board proceedings concerning the [applicant] carefully considered the evidence before it and found: * [Applicant] undesirable for further retention in the military service because of frequent incidents of a discreditable nature with military authorities * His rehabilitation is not deemed possible * In view of the findings the board recommended that [applicant] be discharged from the service because of misconduct with issuance of a under other than honorable conditions discharge certificate 25. On 8 August 1979, he accepted NJP under Article 15, UCMJ for failing to be at his place of duty and being absent without authority on or about 20 July 1979. His punishment consisted of forfeiture of $97.00 for one month. 26. On 20 August 1979, the separation authority approved his discharge under the provision of AR 635-200, Chapter paragraph 14-12b, and directed the issuance of a under other than honorable conditions discharge. 27. On 14 September 1979, the applicant was discharged. His DD Form 214 shows he was discharge in accordance with chapter 14-33B of AR 635-200 (Personnel Separations) with an under other than honorable conditions. He completed 2 years, 11 months, and 23 days of net active service. His DD Form 214 also shows in: a. Block 9c (Authority and Reason) – Paragraph 14-33 B (1) AR 635-200 separation program designator (SPD): JKA b. Block 10 (Reenlistment Code) – 3 and 3B c. Block 26 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – Expert Marksmanship Qualification Badge with Rifle Bar, M16 and Marksmanship Qualification Badge with Grenade Bar, First Class d. Block 18 (Remarks) – lost time from 17-18 March 1979 and 23-25 April 1979. 28. On 12 February 1980, the Army Discharge Review Board (ADRB_ denied his request for an upgrade of his discharge. The ADRB reviewed the record of the applicant, his exhibits and the contentions and concluded that the discharge was proper and that it was based on the absence of any prejudicial error on the discharge procedure in effect at the tie and of the absence of any policy mandating retroactive change in the discharge. The ADRB concluded that the discharge was equitable. The ADRB noted that the applicant has six Article 15s and had been AWOL two times for five days, a bar to reenlistment, transfers to different units and had 13 counseling’s sessions trying improve his conduct. It was noted that some of the counseling sessions were given to the individual when he could have received formal punishment. The ADRB believed that command took all efforts possible to rehabilitate the applicant prior to taking discharge action. Finding nothing in mitigation the ADRB voted unanimously to deny relief. 29. The applicant provides: a. Austin Community College Certificate, 6 April 1981, which shows applicant completed studies and requirements in Electric Powered Auto Manufacturing Practice. b. National Institute for Automotive Service Excellence Certificate, July 1987, which shows, applicant is certified in the automobile services, with the area of demonstrated competence in brakes. c. Tremont School of Judo and Ju-Jitsu certificate, which shows the applicant was awarded various degrees. d. A Tire Technician Certification, undated, which shows the applicant completed and passed the Tire Technician Certification test and has become a certified Mavis and Tire Technician. e. A letter issued by the Division of Human Resources, Chancellor Office, which shows as of 6 May 2008, the applicant is eligible to work as a Beacon. f. A Bureau of Community Education Certificate of Merit, undated, which shows the applicant’s outstanding achievement in punting. g. A Health Academy certificate, 13 September 2011, which shows the applicant successfully completed the Food Protection Course Final Examination. h. A copy of the applicant’s resume which shows 32 years of customer service and in the repair industry. 30. 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. 31. 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 not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the lengthy pattern of misconduct in the record leading to the applicant’s separation and the lack of corroborative evidence to the applicant’s statements, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s characterization of service or other discharge information requested. ? 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, 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 635-200 (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. 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. Army Regulation 635-5 (Separation Documents), in effect then, [and Army Regulation 635-8 (Separation Processing and Documents), currently in effect] establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service as they existed at the time of separation. * item 9c (Authority and reason), do not enter a narrative reason for separation in this item. Enter statutory and/or regulatory authority for separation and the SPD as shown in AR 635-5-1 (Separation Program Designators) based on the regulatory or other authority * item 9e (Character of Service), enter in all capital letters. Authorized entries are (1) Honorable, (2) Under Honorable Conditions, (3) Under Other than Honorable Conditions, (4) Dishonorable, (5) To be Determined, (6) Not Applicable * item 10 (Reenlistment Code), enter the reenlistment eligibility (RE) code on all copies that are to be filed in the members military personnel record jacket (MPRJ) for retention by the Army or copies furnished by the states. 5. AR 635-5-1, this regulation lists the specific authorities (regulatory, statutory, or other directives) and reasons for separation of members from active military service. * Authority: Paragraph 14-33b (1), AR 635-200 * Reason: Misconduct - frequent incidents of a discreditable nature with civil or military authorities * SPD: JKA 6. AR 601-280, the purpose of this regulation is to assist commanders and reenlistment personnel in conducting the Army reenlistment Program. It lists eligibility criteria and options currently available and covers uniform procedures for immediate reenlistment of persons serving in the Active Army. a. Code: RE-3, Explanation: Not eligible for immediate reenlistment unless waiver consideration is permissible and is granted. b. Code: RE-3B, Explanation: Not eligible for immediate reenlistment unless waiver granted. This code is applicable only to persons who have time lost during their last period of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008216 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1