IN THE CASE OF: BOARD DATE: 19 May 2021 DOCKET NUMBER: AR20210005458 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), 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 his discharge was unjust. He continues, stating, in effect: a. When he enlisted, the Army had alcohol available on base; this introduced him to drinking at 17 years of age and started him on a path of alcohol abuse. Once he arrived at his permanent duty station, they put him in a room with an alcoholic medic; there was a "sex issue," and someone robbed the applicant. b. Subsequently, a new sergeant arrived at the applicant's place of duty, and this sergeant was on drugs. The sergeant kept harassing the applicant until the applicant decided he had to leave; he felt there was no one he could turn to for help. c. After 36 years of being clean and sober, the applicant states he believes his story might have ended differently if he had spoken out, but, then again, the applicant suspects his leadership probably would have done nothing. The applicant declares, had he not gone absent without leave (AWOL), he might have committed an even more serious offense; as a result, the applicant believes going AWOL was his only choice. 3. The applicant's service records show: a. On 30 August 1974, after obtaining his parent's consent, the applicant enlisted into the Regular Army for 3 years; he was 17 years old. Effective 30 December 1974, the applicant's advanced individual training leadership promoted him to private (PV2)/E-2. Upon completion of initial entry training, and the award of military occupational specialty 94B (Cook), orders assigned the applicant to Fort Leonard Wood, MO, and he arrived at his unit on 5 January 1975. b. On 28 February 1975, the applicant's Fort Leonard Wood unit reported him as AWOL, and, on 29 March 1975, the unit dropped the applicant from unit rolls. Using a DA Form 3835 (Notice of Unauthorized Absence from United States Army), the applicant's unit provided identifying information about the applicant and stated there was no apparent reason for the applicant's absence. c. On 29 April 1975, a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) showed the applicant had returned to military control after surrendering himself to military authorities at Fort Leonard Wood. d. On 8 May 1975, the applicant initiated a request for discharge in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). Also on 8 May 1975, the applicant's Fort Leonard Wood commander recommended approval of the applicant's separation request. The commander stated the applicant had performed his duties in an unsatisfactory manner while assigned to the unit, adding: (1) After the applicant's arrival in January 1975, the unit sent the applicant to a basic combat training brigade for special duty due to a shortage of cooks. On 10 February 1975, the applicant told his commander of a hardship situation at home, and, based on the hardship, the applicant asked for a discharge. The commander advised the applicant of leave policies and hardship discharge procedures. (2) On 26 February 1975, the basic combat training brigade returned the applicant to the unit because he had performed unsatisfactorily. After counseling the applicant, the unit placed the applicant in its dining facility; 2 days later, after continuing to perform his duties unsatisfactorily, the applicant departed in an AWOL status. (3) The commander noted the applicant had a negative attitude toward the military and wanted out; on his return, the applicant told the commander the reason for his AWOL was he wanted to be discharged, and the applicant intended to do anything (including more periods of AWOL) to ensure his separation. The commander opined the applicant was "immature and not rehabilitatable." e. On 9 May 1975, the applicant's unit preferred court-martial charges against him for having been AWOL from 28 February until 21 April 1975 (52 days). f. On 9 May 1975, the applicant finalized his chapter 10 separation request after consulting with counsel; the applicant affirmed, in writing, that no one had subjected him to coercion, and counsel had advised him of the implications of his request. The applicant elected not to submit statements in his own behalf. g. On 29 May 1975, the separation authority approved the applicant's separation request and directed the applicant's undesirable discharge under other than honorable conditions; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade. On 2 June 1975, orders discharged the applicant accordingly. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he completed 7 months and 10 days of his 3-year enlistment contract, with 52 days of lost time. The DD Form 214 also indicated the applicant had no awards. 4. The applicant requests the Board upgrade his character of service, and he claims a supervisor's harassment caused him to go AWOL. The applicant declares, had he stayed, he might have committed an even more serious offense. a. During the applicant's era of service, Soldiers charged with Uniform Code of Military Justice (UCMJ) violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts-Martial then in effect stated a punitive discharge was one of the authorized punishments for violations of Article 86 (Absence without Leave for more than 30 Days). b. In the 1970s, the Army had no explicit policies or procedures that defined or prohibited hazing or similar behaviors. (1) The Army's Center of Military History first officially documented hazing in the 1990s and noted that hazing appeared to serve three functions: socialization, cohesion building, and a way to "weed out" individuals who were unfit or unwilling to serve. (2) Military Service Chiefs formally and collectively created a "Zero Tolerance" posture in 2012, and, between Fiscal Year 2012 and Fiscal Year 2017, the Service Chiefs implemented numerous initiatives, surveys, and major policy changes designed to gain traction in prevention education and training, and for the reporting of hazing and bullying. (3) The National Defense Authorization Act (NDAA) for FY 2015 required the Government Accounting Office (GAO) to prepare a report about hazing prevention policies and to initiate systems to track incidents of hazing in each of the Military Departments. Thereafter, the Department of Defense (DOD) implemented its own policy that directed all Military Departments and the National Guard Bureau to promulgate appropriate punitive regulations, and to provide updated definitions of hazing, bullying, and problematic activities; the policy further mandated standardized incident tracking and reporting to inform preventative training and education. c. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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 XXX XXX 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, 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. Amy Regulations 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Separation authorities were to conditions the issuance of an honorable discharge based upon proper military behavior and proficient duty performance. In addition, separation authorities could characterize a Soldier's service as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court-martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or a general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an available maximum punishment for violations of Article 86 (AWOL for more than 30 days). 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-64c (Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to 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. Military history accounts for and suggests that some of the most harrowing hazing incidents took place during basic combat training (BCT). There is a long history of sanctioned abuse, hazing, and bullying dating back to the 1940's. Even as early as the 1950s, the Army knew of, but did not attempt to regulate or even discourage, hazing during basic combat training. One of the earliest published studies on hazing occurred in 1992; while the 1992 study provides some invaluable insights, there continued to be a glaring lack of information until 2012. a. In January 2012, all the Military Departments Service Chiefs formally coordinated action to create a "Zero Tolerance" posture; to this end, the Fiscal Year (FY) 2013 National Defense Authorization Act (NDAA) required each of the service secretaries to provide an initial report regarding efforts to address hazing. (1) Defense Equal Opportunity Management Institute (DEOMI) published an 'Executive Summary on Hazing in the Military," dated 7 February 2012, that showed Department of Defense (DOD) did not have a standard definition for hazing, it only addressed hazing behaviors; in addition, all the services had independent definitions of hazing and lacked a definition for bullying. (2) Defense Manpower Data Center (DMDC) reported there was no database on hazing or bullying in the military, and, as of 2012, none of the Force Survey documents addressed hazing and bullying. As a result, both DMDC and DEOMI began conducting surveys that addressed bullying-like behaviors within the context of discrimination. b. In a study conducted by DEOMI, "Hazing: A Military Study," Technical Report No. 01-14, hazing was seen to serve three functions – socialization, cohesion-building, and weeding out those unfit or unwilling to serve. In 2014, a DOD survey revealed that male hazing was the most common type of sexual assault, and that hazing and bullying involved not just sexual assault, but other forms of violence as well. c. The National Defense Authorization Act (NDAA) for FY 2015 required the Government Accounting Office (GAO) to prepare a report on the policies to prevent hazing and to initiate systems to track incidents of hazing in each of the Military Departments. (1) On 23 December 2015, DOD issued a policy memorandum, Subject: "Hazing and Bullying Prevention Response in the Armed Forces." It provided enterprise-wide guidance on prevention training and education, as well as requirements for tracking and reporting incidents of hazing. Incidents of hazing that involved allegations of sexual assault, sexual harassment, or discrimination were to adhere to governing laws, regulations and policies and to prohibit hazing in all circumstances and environments, including “’off-duty’ or in ’unofficial’ unit functions with a nexus to military service… The prohibition of hazing extends to such misconduct committed via electronic communications." The DOD policy directed that the Military Departments and the National Guard Bureau to promulgate appropriate punitive regulations, and to provide updated definitions of hazing and bullying and examples of activities likely to be considered problematic; the policy also mandated standardized incident tracking and reporting to inform preventative training and education. (2) In February 2015, the GAO submitted a report to Congress outlining seven recommendations DOD needed to take to increase oversight on hazing incidents involving service members. DOD concurred with all seven recommendations, which further supported the Hazing and Prevention efforts already in progress to include publishing an Anti-Harassment directive during FY 2018 that updated the requirements outline in the aforementioned policy memorandum dated 23 December 2015. d. A DOD Summary Report on Hazing Prevention and Response in the Armed Forces, for reporting period 23 December 2015 – 25 April 2016, showed a number of accomplishments and best practices reported for FY 2016. These included the establishment of the DoD Hazing Bullying Workgroup, which was comprised of senior subject matter experts from the DOD Office of the General Counsel, DEOMI, the Military Departments, and the Office of the Secretary of Defense. This group provided a forum to synchronize efforts across DOD and the Military Departments; which included: * developing effective prevention and response policies; * using from studies to redefine hazing, existing processes in place, and to develop a comprehensive database; * producing a key deliverable, "Commander's Guide to Hazing Prevention," used as a tool to help commander's identify and respond to hazing incidents at the unit level; and * updating the 1997 Secretary of Defense Policy Memorandum on Hazing e. As part of the result from the 2016 GAO report, FY 2017 NDAA legislated "Improved Department of Defense prevention and Response Hazing in the Armed Forces,” which requires the establishment of a database on hazing incidents, improved training on hazing, and annual reports to Congress. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005458 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005458 6 ABCMR Record of Proceedings (cont) AR20210005458 5