IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20220012089 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge * Permission to appear personally before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, 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, in effect, his traumatic brain injury (TBI), incurred in 1996 during a parachute jump, should mitigate his misconduct sufficiently to warrant an upgraded character of service. In support of his request, he provides a letter showing VA has granted service-connection for the applicant's TBI. 3. A review of the applicant's service record reveals the following: a. On 12 November 1986, the applicant enlisted into the Regular Army for 4 years; upon completion of initial entry and airborne training, and the award of military occupational specialty 92A (Automated Logistical Specialist), orders assigned him to an aviation battalion at Fort Bragg, NC; he arrived at his new unit, on 22 June 1987. b. In or around April/May 1989, the applicant received reassignment instruction for Korea. On 25 April 1989, Permanent Orders (PO) awarded the applicant the Army Achievement Medal (1st Award) for meritorious service. On or about 26 June 1989, he arrived in Korea and orders further assigned him to a maintenance battalion. c. In April 1990, the applicant's leadership awarded him an Army Achievement Medal (2nd Award) for providing dedicated support during Joint Command Field Training Exercise "Team Spirit, 1990." On 10 June 1990, PO awarded the applicant the Army Achievement Medal (3rd Award) for meritorious service as a clerk and tool room custodian, during the period 28 June 1989 to 25 June 1990. d. On 26 October 1990, while still in Korea, the applicant immediately reenlisted for 3 years. On 9 November 1990, after serving 16 months in Korea, the applicant completed his tour and permanent change of station orders relocated him to Fort Bragg, NC; he arrived at his unit, on or about 12 December 1990. e. On 4 January 1991, the applicant deployed to Southwest Asia in support of Operations Desert Shield/Desert Storm; on 10 July 1991, a DA Form 4980-14 (Army Commendation Medal Certificate), as authorized by PO Number 17-132, awarded the applicant the Army Commendation Medal for his outstanding duty performance during Operation Desert Shield. On 27 March 1991, the applicant redeployed to Fort Bragg. f. On 13 February 1992, the XVIII Airborne Corps Noncommissioned Officer (NCO) Academy announced the applicant's successful completion of Primary Leadership Development Course (PLDC); the report rated the applicant as "Superior" in oral communication and contribution to group work and lauded the applicant's exceptional leadership skills, noting the applicant exhibited a "strong 'Take Charge' attitude throughout the course." g. Effective 1 August 1992, the applicant's chain of command promoted him to sergeant (SGT)/E-5. On 29 July 1993, the applicant immediately reenlisted for 3 years, and, on 22 November 1995, he reenlisted for 4 years. h. On 30 May 1996, the applicant graduated from Automated Logistical Management Basic NCO Course (BNCOC); his DA Form 1059 rated him as "Superior" for oral communication, leadership skills, and contribution to group work, and acknowledged that the applicant was a "superior NCO with unlimited, unequaled potential." i. In or around February 1996, the applicant received a change of rater DA Form 2166-7 (NCO Evaluation Report (NCOER)) for the rating period 199507 through 199602. In Part IV (Values/NCO Responsibilities (Rater)), the rater checked "Yes" for all 7 items, and he gave the applicant a rating of "Excellence" for responsibility and accountability and "Success" for the remaining items. The senior rater rated the applicant's overall performance as "2/Successful," and his overall potential as "2/Superior." j. In or around February 1997, the applicant received a change of rater NCOER for the rating period 199603 through 199702: (1) Part IV (Values/NCO Responsibilities (Rater)), the applicant's rater checked the "No" block for all items except, "Is committed to and shows a sense of pride in the unit – works as a member of the team." The rater added the comments: "improper relations with junior enlisted Soldier demonstrate lack of integrity" and "sets bad standards off duty and does not do what he knows is right." (2) In addition, the rater gave the applicant "Success" ratings for competence, physical fitness and military bearing, and training but rated the applicant as needing improvement in leadership and responsibility and accountability. For overall potential, the rater reflected the applicant as "Marginal." (3) The senior rater stated he was unable to rate the applicant due to not meeting minimal senior rater qualifications. k. On or about 14 March 1997, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). (1) The applicant's battalion commander had charged the applicant with the following UCMJ Violations: * Article 90 (Willful Disobedience of a Commissioned Officer's Order) – On 7 January 1997, the applicant willfully disobeyed his commander's order not to contact Private (PV2) * Article 107 (False Official Statements) – On 4 December 1996, and with the intent to deceive, the applicant signed a false official statement (i.e., DA Form 2823 (Sworn Statement)) * Article 108 (Wrongful Disposition of Military Property of a value of $100 or less) – Between 6 July and 3 December 1996, in the vicinity of Kaposvár, Hungary, the applicant willfully and wrongfully disposed of a DD Form 2 (United States Uniformed Services Identification Card) by giving the card to PV2 * Article 134 (General Article – Fraternization) – Between 6 July 1996 and 7 January 1997, the applicant knowingly fraternized with PV2 on terms of military equality by going out with, drinking with, sending improper correspondence to, and having PV2 in his quarters * Article 134 (General Article – Soliciting Another to Commit an Offense) – Between 6 July 1996 and 7 January 1997, the applicant wrongfully solicited PV2 to commit adultery (2) The battalion commander found the applicant guilty and directed the following punishments: * Reduction to specialist (SPC)/E-4 * Forfeiture of half pay for 2 months * Extra duty for 45 days * Restriction for 45 days l. On 7 May 1997, the applicant's commander notified him, via memorandum, that she was initiating separation action against him, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense). (1) The reasons for this action were the following; the applicant had: disobeyed a commissioned officer's order; signed a totally false official statement; willfully suffered military property (sic); knowingly fraternized with a subordinate; and solicited a Soldiers to commit adultery. (2) The commander indicated her intent to recommend the applicant for a general discharge under honorable conditions, but the final decision rested with the separation authority. m. On 9 May 1997, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for his separation action, and he elected to appear personally and with counsel before an administrative separation board to present his case. n. On or about 7 July 1997, the applicant's brigade commander recommended the applicant's separation with an under other than honorable conditions character of service. o. On 10 July 1997, after consulting again with his counsel, the applicant affirmed he would voluntarily waive consideration of his case by an administrative separation board contingent on the separation authority approving a no less favorable character of service than under honorable conditions (General). On 24 July 1997, the separation authority accepted the applicant's conditional waiver and directed the applicant's general discharge under honorable conditions. p. On 6 August 1997, the U.S Army Criminal Investigation Command (CID) received a report that the applicant had forged his O-5 level commander's signature on three memoranda which would have rescinded the applicant's separation under paragraph 14-12c, AR 635-200, and changed his orders to show instead a separation based on the applicant reaching his retention control point (RCP). With this change, the applicant would have fraudulently become entitled to receive $17,992.66 in separation pay. q. On 12 December 1997, the applicant resubmitted a conditional waiver request, wherein he acknowledged that, because of his subsequent actions, the separation authority had rescinded the approval of the applicant's previous conditional waiver, and the applicant stated he had no objection to that rescission. In addition, the applicant affirmed that he voluntarily waived consideration of his case by an administrative separation board, and he understood this waiver could result in his separation under other than honorable conditions. r. On 18 December 1997, the separation authority rescinded his previous approval of the applicant's general discharge, per paragraph 14-12c, AR 635-200. On 14 January 1998, the applicant's commander submitted a recommendation to separate the applicant under other than honorable conditions, in accordance with chapter 14, paragraph 14-12c, AR 635-200. On 9 February 1998, the separation authority approved the commander's separation recommendation and directed the applicant's discharge under other than honorable conditions. s. On 10 March 1998, the Army separated the applicant for misconduct under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 years, 3 months, and 29 days of net active duty service; the form also reflected the following: (1) Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Southwest Asia Service Medal with two bronze service stars * Army Service Ribbon * Overseas Service Ribbon * Driver and Mechanic Badge with Driver-W (Wheeled Vehicles) Component Bar * Kuwait Liberation Medal – Saudi Arabia * Kuwait Liberation Medal – Government of Kuwait * Parachutist Badge (2) Item 18 (Remarks) reflects the applicant continuous honorable service from 19861112 to 19951121. t. On 2 September 2002, the applicant petitioned the Army Discharge Review Board (ADRB) requesting an upgraded character of service. He argued his leadership had "chaptered (him) out of the Army for adultery; now adultery is not punishment (sic) unless it is with your Soldier. The private I committed this act (with) was not my Soldier or in my section." On 11 December 2002, the ADRB conducted a records review and unanimously voted to deny the applicant's request. 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. 5. The applicant requests the upgrade of his under other than honorable conditions discharge. a. During the applicant's era of service, commanders could initiate separation action, under the provisions of paragraph 14-12c, against Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the Manual for Courts-Martial authorized a punitive (i.e., bad conduct or dishonorable) discharge. b. The Manual for Courts-Martial, in effect at the time, showed a punitive discharge was among the maximum punishments for violations of Articles 90 (Willful Disobedience of a Commissioned Officer's Order), 107 (False Official Statements), 108 (Wrongful Disposition of Military Property of a value of $100 or less) 134 (General Article – Fraternization), 134 (General Article – Soliciting Another to Commit an Offense), and Article 83 (Fraudulent Separation). 6. 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. 7. 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. 8. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 10 March 1998 discharge characterized as under other than honorable conditions claiming his misconduct was due toa traumatic brain injury (TBI) he reports to have sustained in a airborne operation in 1996. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 12 November 1986 and was discharged on 10 March 1998 under the separation authority provided by paragraph 14-12c(2) of AR 635-200, Personnel Separations – Enlisted Personnel (26 June 1996): Commission of a serious offense. d. The applicant’s company commander recommended his separation under paragraph 14-12c of AR 635-200 on 7 May 1997: “The reasons for my proposed action are: you disobeyed an order of a commissioned officer; you signed an official statement which was totally false; you willfully suffered military property of the United States; you knowingly fraternized with a subordinate, a lower enlisted person; and you solicited a soldier to commit the offense of adultery.” e. The recommendation was approved but the rescinded “based upon allegation that Specialist [Applicant] has committed further acts of misconduct. The 14 January 1998 company commander’s second recommendation for the applicant’s separation under paragraph 14-12 included the additional reason of “attempted to procure a fraudulent separation.” f. On 9 February 1998, the Commanding General of V Corps approved the applicant’s immediate separation under paragraph 14-12c of AR 635-200 and directed the applicant be issued an under other than honorable conditions discharge. g. No medical documentation was submitted with the application. A 1 December 2022 memorandum from the Department of Veteran Affairs shows he has been granted “Service connection for treatment purposes only under 38 USC chapter 17 for traumatic brain injury (also claimed as memory loss).” h. It is the opinion of the ARBA medical advisor that a discharge upgrade is not warranted. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: TBI (2) Did the condition exist or experience occur during military service? YES (3) Does the condition or experience actually excuse or mitigate the discharge? Partially: As there is a nexus between TBI and difficulty with authority figures, the condition mitigates the acts of disobeying a commissioned officer. However, the condition does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right and therefore cannot mitigate the remainder of his misconduct. It is opinion of the ARBA medical advisor that the totality of the misconduct outweighs any further mitigation offered by liberal consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant’s request, period and length of service and awards received. The Board noted the administrative corrections to his record. The Board considered the relative weight and severity of the misconduct. The Board noted that the applicant served for more than eleven years approximately 25 years ago. Given the length and time of his service and in consideration of published DoD guidance on liberal consideration, based on the preponderance of the documentation available for review, the Board determined the severity of the punishment was unjust and relief warranted. 2. After reviewing the application and all supporting documents, the Board determined they could reach a fair and equitable decision in the case without a personal appearance by the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 10 March 1998 showing • Characterization of Service: Under Honorable Conditions • Separation Authority: No change • Separation Code: No change • Reentry (RE) Code: No change • Narrative Reason for Separation: No change 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all authorized awards and decorations. 2. AR 600-8-22 (Military Awards), currently in effect, states: a. The Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. b. The Noncommissioned Officer Professional Development Ribbon is awarded to Active Army, Army National Guard, and U.S. Army Reserve Soldiers for successful completion of designated NCO professional development courses. The ribbon is awarded upon completion of the primary level training (i.e., PLDC), and a Numeral "2" is added when the Soldier graduates from BNCOC. 3. The evidence of record shows the applicant completed a 16-month tour in Korea, graduated from both PLDC and BNCOC, and PO awarded him the Army Achievement Medal (3rd Award) and the Army Commendation Medal. 4. Amend the applicant's DD Form 214, ending 10 March 1998, by adding the following: * Army Commendation Medal * Army Achievement Medal (3rd Award) * Korea Defense Service Medal * Noncommissioned Officer Professional Development Ribbon with Numeral "2." ? 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. Title 10, United States Code, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge) 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. Separation authorities could 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. Paragraph 3-7b (General Discharge). 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. Chapter 14, paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the Manual for Courts-Martial authorized a punitive (i.e., bad conduct or dishonorable) discharge. 4. The Manual for Courts-Martial, in effect at the time, showed a punitive discharge was among the maximum punishments for violations of Articles 90 (Willful Disobedience of a Commissioned Officer's Order), 107 (False Official Statements), 108 (Wrongful Disposition of Military Property of a value of $100 or less) 134 (General Article – Fraternization), 134 (General Article – Soliciting Another to Commit an Offense), and Article 83 (Fraudulent Separation). 5. 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; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 6. 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. 7. AR 15-185 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) AR20220012089 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1