IN THE CASE OF: BOARD DATE: 1 October 2021 DOCKET NUMBER: AR20200008085 APPLICANT REQUESTS: upgrade of his under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * personal letter * letter of support * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 enlisted in the Army in his late teens when he was still wild and foolish. He loved the Army and his future was bright. After basic training and advance training as a unit supply specialist, his first assignment was to Korea, space 38/39 702nd Missile Main/Bat. He was always afraid of being wounded or killed by being so close to the demilitarized zone (DMZ) and his NCOIC seemed to harass him daily about something and just wanted to get out of the Army. Now that he is a grown man, he looks back and regrets the mistake he made in the past. But that young man that did all those things is gone, and he is full of regrets about how he wasted his young life. Now he tries real hard to break the cycle with his children, of making mistakes he made and teach them the importance of education. He asks for forgiveness of his unsatisfactory service while in the military. It still haunts him when he has to say the type of discharge he received from the Army. It also hinders him from getting a good job. He thanks [the Board] from the bottom of his heart for looking favorable upon his request. 3. The applicant provided a personal letter to the Board. He states, in part, a. He was young, mad at the world. He grew up an air force brat, but his dad was rarely there. He had a delayed entry in the army his senior year. He just wanted to get away. He had 2 years of Marine ROTC. In his mind he was grown-up. He didn’t need his dad’s rules anymore. He’d join the Army and live by a code he didn’t know. b. From the get go, he remembers this big guy was always being a bully. He was 18 but only weighed 116 pounds but he was an E-2 because of ROTC. He was the smallest guy there. He wasn’t scared to fight, he just didn’t understand having to protect yourself from bullies and ass-grabbers who he thought was supposed to be your buddy, supposed to be a unit. They only got 1 no-go. After that the sergeant made it a point to drill after drill, day after day; you don’t get any no-go. c. He spent basic and AIT at Fort Jackson, SC. He spent about a month and a half in California, then flew 18 hours to Korea. When you’re 18-19 years old in a foreign country and on your way to base camp and all you see are tanks plus howitzers, a lot goes through your mind. Especially when you have to make a will, sign a death certificate, are told if anything happens they estimate you have 72 hours to survive before any relief can get to you. This was done at Camp Red Cloud CRC basic orientation when you arrived. d. He was sent to space 38/39 702nd missile maintenance battalion; 132 total people in camp. The commanding officer had finished his tour and was in the process of leaving along with the supply sergeant. He remembers the first sergeant pretty much ran the camp at the time. He might have actually done supply work for about 3-4 weeks. The old sergeant said don’t give out anything but basic items until the new sergeant showed up. The new sergeant was half Korean, he came in, and he remember him saying something about logging everything spent a day. e. The camp was ragtag old Quonset huts, gas furnace and open pay. They sold their rations on the black market. The called newbies turtles. Being new, he wanted to fit in but didn’t want to ruffle any feathers. He remembers loading a truck 1-2 weeks after the new sergeant got there. He took him to [Uijeongbu] and they sold it to [ajumma]. After that he was out in the field driving the truck supplying contact teams. He spent more time out in the field than on the base. Most of the time out in the field it was either drinking silk or jinro soju, smoking opium laced joints. This was his introduction to the Army. f. After 5-6 months the new colonel showed up. He remembers the day somebody shot into the mess hall at the officers table; nobody got hurt. He sat in his truck for hours doing an alert that was call off after part of the officer quarters caught on fire. It seemed liked there was always something. g. He remembers being out in the DMZ delivering supplies when all hell broke loose for about 1 to 1.5 hours. He couldn’t stop and fire at anything or anybody. He ran away and hid out in some old bunker. They had to come get him out because he was lost. He was never the same after that, he cussed at the sergeant and colonel and refused to go back. He started drinking really heavy and had nobody to turn to. He got a couple of article 15s, telling the colonel and battalion commander some choice words, and they discharged him. h. When he got back to the States, it was pretty much drugs and jail. He has done his best to put it behind him and doesn’t think he ever truly found himself. He has bad knees and bad hearing. They didn’t give the equipment for your knees, elbows and hearing like they do now. They didn’t check you for PTSD like they do now. There was no band of brothers or sound leadership. He looks back now and doesn’t remember if it was him or the Army, or maybe it was both. i. He wonders why there wasn’t anybody there to help him through the struggle growing up for over 12 years. He played the trumpet first chair. His uncle played the piano and his cousin played the sax. They would play together when they were around each other. He hasn’t played since a part of him was ripped away, no focus. Just one day at a time, fishing is a great solitude for peace of mind. He won’t say he has it all together but he doesn’t struggle so much with anger and emotions. He thinks at least he’s not homeless and can hold a job. He doesn’t let people get too close. He tells his kids life is what it is, just keep your head above water. The applicant’s complete statement is available for the Board’s review. 4. The applicant enlisted in the United States Army Reserve on 29 September 1981 for a period of 6 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years on 5 October 1981. He was awarded the military occupational specialty (MOS) of 76Y (unit supply specialist) on 4 March 1982. He was transferred to his permanent duty station in Korea on 18 March 1982. 5. A DA Form 2627 (Record of Proceedings Under Article 15 UCMJ) shows the applicant accepted non-judicial punishment for wrongfully appropriating 12 bed sheets, the property of the US Government on 12 June 1982. 6. A DA Form 2496-1 (Disposition Form) shows the applicant was recommended a rehabilitation failure from Stanley Counseling Center on 24 September 1982. The recommendation states, since enrollment in August 1982, [the applicant] has consistently shown a pattern of poor motivation for rehabilitation as evidenced by continuing ETHO abuse. Therefore, in consultation with the [applicant’s] commander, he is declared a rehabilitation failure. Recommend separation under provisions of AR 600-200, chapter 9, paragraph 9-4, 9-5. 7. A request for psychiatric consultation was initiated on 23 September 1982. A report of mental status evaluation was completed on 24 September 1982. The report shows the applicant’s behavior was normal, he was fully alert and fully oriented. His mood was level, his thinking process clear, thought content normal, and memory good. No significant mental illness was noted. He was found to be mentally responsible, able to distinguish right from wrong, to adhere to the right, has the mental capacity to understand and participate in board proceedings, and meets all retention standards. 8. The applicant’s commander completed an undated Chapter 5 Worksheet citing the applicant’s misappropriation of 12 bed sheets from the unit supply room to his barracks. When questioned, he did not recall doing it, however, he did admit that another Soldier in the company told him of a local national who would pay him for the sheets. He refused to identify the Soldier who gave him the lead. The commander did not make a recommendation on the character of service. 9. A DA Form 4856 (General Counseling Form) shows on 29 July 1982, the applicant and other members of the work detail had to be corrected to stop playing foosball and begin work. At that time, he, through his words and slowness to respond gave the impression of disrespect to a noncommissioned officer (NCO). 10. A Chapter 9 Worksheet, dated 11 September 1982, was completed citing the applicant had demonstrated a poor attitude in performance of his duties and he received a field grade article 15 for the misappropriation of government property. He was intoxicated at the time by his own admission. He did admit that there was a Soldier in the unit who told him where he could dispose of the sheets but he refused to identify him. He was referred to the drug and alcohol program as a result of his being intoxicated during the theft of the sheets. Since then, some marijuana was found in the common area, in his room, and a partially burnt marijuana cigarette was found in his canteen cup in the common area. He was observed mimicking the first sergeant’s commands while at attention in a morning formation. He was orally counselled by the commander for his actions. The commander recommended a general discharge. The commander’s remarks state, [the applicant] has committed a serious offense (theft of government property) and refused to assist in the investigation. He has been counselled, placed in the drug and alcohol program and has been referred to mental hygiene at Casey House. But his attitude remains unchanged. Further attempts at rehabilitation would be a waste of resources. 11. On 17 September 1982, a DA Form 268 (Report of Suspension of Favorable Personnel Actions) was initiated in response to the applicant’s pending elimination under chapter 9. 12. On 15 November 1982, a DA Form 268 shows the applicant’s pending elimination under chapter 9 was dismissed. 13. A notification of positive urine specimen dated 8 December 1982, advised the applicant’s commander that he had tested positive on a urinalysis test conducted on 9 November 1982. 14. A DA Form 4856 shows the applicant was counselled for his positive random urine test conducted on conducted on 9 November 1982. The summary of counseling states: …since the termination of chapter action against you and your move to the motor pool your performance and attitude have been very good. All those about you in your chain of command are most complimentary on your performance. The fact that a urine test has come down as positive concerns me a great deal. It would be a terrible waste to throw away all that you have accomplished so far. You have the motivation and drive to be a fine [S]oldier, don’t let that slip from your grasp by the abuse of either alcohol or drugs, of any kind. I want you to immediately access your position and your goals in respect to the military and determine if you can live within those boundaries within the military. I believe you can. At no time will you engage in the abuse of alcohol or drugs. Failure to do so could result in your removal from the military. You must be advised that type of removal from the military under these circumstances could cause severe hardship on you and your ability to seek civilian employment. 15. On 1 February 1983, the applicant received a notification of pass privilege suspension. 16. A DA Form 4856 shows the applicant was counselled on 2 February 1983 for having an unauthorized razor knife in his area and unsecured prescription drugs. 17. On 24 February 1983, the applicant’s commander was notified he had a dishonored check tendered to the Korea Area Exchange. 18. A DA Form 2627 shows the applicant accepted non-judicial punishment for being disorderly in the G company dining facility, wrongfully use provoking words, to wit; “I am going to kick little chief’s ass”, towards another Soldier, and without authority go from his appointed place of duty on 19 February 1983. 19. A DA Form 4856, shows the applicant was counselled on 4 March 1983 for verbally assaulting another member of his unit and had been disrespectful toward a senior NCO. The commander noted he was initiating elimination action against him under chapter 13, that he would receive a general discharge based on unsatisfactory performance. 20. A DA Form 268, shows the elimination proceedings under chapter 13 against the applicant had been dismissed on 29 March 1983. 21. On 30 March 1983, a DA Form 4856, shows the applicant was counselled to inform him that he had been removed from chapter processing for the second time. He was advised one more violation will result in re-initiation of chapter action against him. 22. A DA Form 2627 shows the applicant accepted non-judicial punishment for absenting himself from the compound he is billeted in an off-duty status and not having in his possession an authorized DD Form 345Ek, Armed Forces Liberty Pass on 17 April 1983. 23. On 18 April 1983, a DA Form 4856, shows the applicant was informed that his latest violation of the pass policy clearly demonstrates that he has no desire for continued military service. He was informed that [his commander] was initiation action against him under chapter 13. 24. A DA Form 2627 shows the applicant accepted non-judicial punishment for failing to go to his appointed place of duty on 2 May 1983. 25. On 6 May 1983, the applicant was recommended for discharge for unsatisfactory performance under the provisions of chapter 13, AR 635-200. 26. The applicant was notified of the proposed separation on 6 May 1983. The reasons for the proposed action states he has become a serious disciplinary problem within the unit due to his extremely poor attitude, his inability to adjust to military life in Korea. His presence has had an adverse effect on military discipline, good order and morale. His conduct and motivation has been a disruptive influence within the company. His ability to effectively perform in the military in the future is unlikely. He was advised he would receive a general (under honorable conditions) discharge. He was advised of his rights to consult with consulting counsel, submit statements on his own behalf, and obtain copies of separation documents. He was advised he may waive his rights in writing and withdraw any waiver of his right prior to approval of his discharge. 27. On 7 May 1983, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated action for separation for unsatisfactory performance under chapter 13, its effects, of the rights available to him, and the effect of any action taken by waiving his rights. He elected to not submit statements on his own behalf. He acknowledged he may encounter substantial prejudice in civilian life, and he will be ineligible to apply to enlist for a period of 2 years after discharge. On 11 May 1983, the recommendation for discharge was approved. 28. The applicant’s record incudes an undated DA Form 4126-R (Bar to Reenlistment Certificate). 29. The applicant’s DD Form 214 shows he was discharged under honorable conditions on 18 May 1983 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 for unsatisfactory. He was credited with 1 year, 7 months, 14 days of net active service. His separation code was JHJ, and reentry code was RE-3/3C. 30. The applicant provides a letter from his uncle that states he would gladly say his nephew is a good man but did some things that aren’t so great. He joined the Army and lived independently for as long as he can remember. He was always doing his work and going about his day. He was a good Soldier in the Army. He was always confident in his abilities and ready for anything. He was 18-19 when he got discharged from the Army. After that things started to go downhill, he started to drink and do drugs. He would be in jail, he was a really heavy drinker and he was high on drugs most of the time. He was out and about most of the time. He had no one to lean on and he was all alone. He didn’t understand what he was doing so he just continued to do these things. He never got the proper care of an Army Soldier like Soldiers do now. 31. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, contains policy and outlines procedures for eliminating enlisted personnel found to be for unqualified for further military service because of unsatisfactory performance. Paragraph 13-2 provides for the discharge of individuals for unsatisfactory performance when the member will no develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. 32. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a discharge upgrade contending that the misconduct leading to his Under Honorable Conditions (General) discharge was due to fears of being harmed in Korea and drinking heavily he developed during his time in the Army. b. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed as well. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. A hard copy of military medical records or civilian medical documentation was not provided for review. Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 29 Sep 1981 and subsequently switched to the Regular Army on 05 Oct 1981. During his time in service, he was assigned overseas to Korea from 18 Mar 1982 - 17 May 1983. c. His duty assignment was as a Unit Supply Specialist. His awards included the Army Service Ribbon and Overseas Service Ribbon. He received at least four Article 15’s for violations, including “wrongfully appropriate 12 bed sheets…property of U.S. Government,” (12 Jun 1982), wrongful possession of a Liberty Pass (17 Apr 1983), disorderly with use of provocative language, along with leaving place of duty (19 Feb 1983), and failing to go to formation (02 May 1983). He received at least three General Counseling Forms between 09 Nov 1982 and 18 Apr 1983 for violations including a positive urinalysis (09 Nov 1982), possession of an unauthorized razor knife (02 Feb 1983), poor attitude and relationship with unit including being disrespectful to a senior NCO and flaunting “contempt for rules and regulations” (18 Apr 1983). He received an Under Honorable Conditions (General) discharge on 18 May 1983 with narrative reason for separation, Unsatisfactory Performance. d. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). There was no available data for any medical or behavioral health notes, as well as no data on the problem list. A VA message indicated that he was not registered at a VA site. e. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist there is insufficient evidence to support the presence of any behavioral health conditions which led to his Under Honorable Conditions (General) discharge. No medical records supporting the presence of significant psychological symptoms or diagnoses during his time in service were provided for review. However, theft of government property is not part of the natural history or sequelae of most behavioral health conditions, and, as such, is not mitigated under Liberal Consideration. That said, the Agency psychologist will gladly revisit the applicant’s request should he, in the future, submit medical documentation of any behavioral health condition(s) related to his military service. An upgrade is therefore not recommended at this time. BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements, and one letter 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows his DD Form 214 for the period ending 18 May 1983 should be amended with the following administrative corrections: * item 13. (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) add Korea Defense Service Medal 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, contains policy and outlines procedures for eliminating enlisted personnel found to be for unqualified for further military service because of unsatisfactory performance. Paragraph 13-2 provides for the discharge of individuals for unsatisfactory performance when the member will no develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. 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 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 UOTHC 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. 4. 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, on 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. 5. 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. 6. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 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 for a period of 30 consecutive or for 60 nonconsecutive days. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008085 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1