IN THE CASE OF: BOARD DATE: 24 January 2023 DOCKET NUMBER: AR20220004153 APPLICANT REQUESTS: * reconsideration of his previous request for change of character of service from under other than honorable conditions to honorable discharge * personal appearance before the Board by phone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 28 April 2022 * Congressional Correspondence 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 on 9 October 2019. 2. He was wrongly accused, and he is unable to prove it. He had problems in the 1970s, the supervisors used his name in a racist way calling him blackie. They have offenses against him that are not true. He has also sustained a service injury that has consumed his body and causing his health to decline. He needs his discharge upgraded because his illness does not have a cure; with full benefits he would live out his life with dignity (see full statement). 3. On 11 January 1977, the applicant enlisted in the Regular Army. He completed training and was awarded the military occupational specialty 94B (Food Service Specialist). 4. On 18 May 1977, the applicant was assigned to Headquarters, and Headquarters Command, 2nd Battalion, 67th Armor Regiment, 2nd Armored Division. 5. He received a series of adverse counseling statements beginning in June 1977 for the following: * Respect to higher grade personnel * Reporting for duty late * Personal appearance * Driving car without tags * Not reporting for duty on 5 July 1977 * Not making bed, not keeping wall locker clean * Being disrespectful to an officer * Not shaving before reporting to duty * Uniform not complete 6. On 23 August 1977, his duty status changed from present for duty (PDY), to confined civilian authorities. However, on 24 August 1977, his duty status was changed back to PDY. 7. On 15 September 1977, he was picked up for shoplifting from the Main Post Exchange at Fort Hood, TX. 8. On 21 September 1977, he received nonjudicial punishment (NJP) for failing to go to his appointed place of duty. His punishment included reduction to private; suspended for six months, forfeiture of $87.00, restriction for 14 days, and extra duty for 14 days; 7 days suspended for 90 days. 9. On 27 September 1977, the applicant’s company commander vacated the portion of the applicant’s punishment that included reduction to private, suspended for six months and extra duty for 14 days; 7 days suspended for 90 days. The unexecuted portion of the punishment was ordered executed. 10. On 26 September 1977, his duty status changed to confined civilian authorities. 11. Meanwhile, his commander initiated a bar to reenlistment against him citing his misconduct. the commander stated that the applicant’s performance since joining this unit has been poor at best. He displays no promotion potential, is unreliable, requires constant supervision, and is unable to perform the most menial tasks. He has been nothing but a burden to his immediate supervisor and to this company. He was given an opportunity to submit a statement but declined doing so. On 28 September 1977, his brigade commander approved a Bar to Reenlistment Certificate. 12. On 6 October 1977, the applicant’s duty status changed to PDY. 13. He received two counseling on 18 and 19 October 1977, which show, the [applicant]: * performance in the dining facility is below the standards of the average cooks * is not dependable, he is often late for duty and is disrespectful to his supervisors * he does not follow orders * his personal appearance and living standards do not meet the U.S. Army standards * during an inspection it was discovered that his complete clothing issue was missing 14. On 19 October 1977, the applicant’s company commander initiated elimination action under Army Regulation (AR) 635-200 (Personnel Separation—Enlisted Personnel), chapter 13-5 due to applicant’s misconduct. The commander noted since the applicant’s assignment to the unit he has been arrested twice, once by civil and once by the military authorities, and still awaits a trial date. He has received numerous counseling and Article 15s, he is unable to follow simple instructions, unreliable and moral character is questionable. His retention in the service should not be considered. 15. On 19 October 1977, in consultation with counsel, he elected to have his case considered by a board of officers and to personally appear before that board with counsel. He also acknowledged that he could encounter substantial prejudice in civilian life if issued a general, under honorable conditions characterization of service and that if issued a under other than honorable condition, he would be ineligible for many or all benefits as a veteran under both Federal and State laws. He also requested that a minority officer be appointed as a member of his board. 16. On 21 October 1977, the applicant received NJP for violating an order from his company commander and failing to go to his appointed place of duty. His punishment included forfeiture of $92.00, restriction for 14 days, and extra duty for 7 days. 17. On 27 October 1977, he received NJP for failing to go to extra duty and violating restriction. His punishment included a forfeiture of $92.00. 18. On 9 November 1977, he received NJP from his battalion commander, for failing to go to extra duty and violating the order of his company commander. His punishment included forfeiture of $190.00 per month for a period of two months, restriction for 40 days, and extra duty for 40 days. 19. On 13 December 1977, charges were preferred against the applicant for four additional instances of failing to report to extra duty. These charges were referred to a special court-martial on 16 December 1977. 20. The applicant and counsel personally appeared before an elimination board on 19 December 1977. After hearing the testimony, including an unsworn statement from the applicant and considering documentary evidence and argument, the board found that the applicant had engaged in misconduct in the form of frequent incidents of a discreditable nature with civil or military authorities and recommended that his service be characterized as UOTHC. 21. On 27 January 1978, the separation authority approved the findings and recommendations of the board of officers, waived rehabilitative efforts, and the applicant be eliminated with a UOTHC. 22. The applicant was discharged from active duty on 16 February 1878. His DD Form 214 shows he was discharged UP of AR 635-200, paragraph 13-5a (1), with the issuance of an under other than honorable conditions characterization of service (Separation Code JKA, Reentry Code 3/3B). He completed 1 year and 25 days of active service. His DD Form 214 also shows he had lost time from 23 August 1977 to 23 August 1977 and from 26 September 1977 to 5 October 1977. 23. On 9 October 2019, the Board denied his request for an upgrade of his discharge. After review of the application and all evidence, the Board determined relief was not warranted. The applicant’s contentions and reference letter were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 24. By regulation (AR 635-200), an individual was subject to separation for frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug abuse, an established pattern of shirking, an established pattern of dishonorable failure to pay just debts, and homosexuality. 25. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to misconduct after he had engaged in frequent incidents of a discreditable nature with civil or military authorities (failure to repair, civilian confinement, shoplifting, disobeying orders, disrespect, etc.). The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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. 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 to amend the decision of the ABCMR set forth in Docket Number on 9 October 2019. 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. Army Regulation (AR) 635-200 (Personnel Separation—Enlisted Personnel), then in effect, set for the basic policy for the separation of enlisted personnel. Chapter 13 provided that Soldiers could be discharged due to frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug abuse, an established pattern of shirking, an established pattern showing a dishonorable failure to pay just debts, or homosexuality. A characterization of service of under other than honorable conditions was normally considered appropriate. In the absence of a waiver of appearance with counsel before a board of officers appointed to consider the case, a characterization under other than honorable conditions could be directed only by a commander exercising general court-martial authority based on the approved recommendation of a board of officers. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel. 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 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. 4. 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) AR20220004153 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1