IN THE CASE OF:	  

		BOARD DATE:	 21 December 2010 

		DOCKET NUMBER:  AR20100015806 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of and/or correction to the following entries shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty):

	a.  character of service other than honorable,

	b.  misconduct – commission of a serious offense,

	c.  arrears in pay (53 days) (a new issue), and

	d.  education benefit deposit made to Veterans Education and Assistance Program (VEAP) (a new issue).

2.  The applicant states his discharge was inequitable and discrimination impaired his ability to serve.  The applicant continues that:

	a.  he was reduced in grade without being given the opportunity to review any documents or to request a trial by court-martial;

	b.  he was not afforded any of his rights, including the right to demand court-martial, when nonjudicial punishment was imposed against him;

	c.  he was given a discharge under other than honorable conditions (UOTHC) without an administrative separation board, which he was entitled to because he had over 6 years of service; and

	d.  after reporting a civil rights violation and testifying against a general officer he became the target of discrimination which led to his emotional and mental decline.

3.  The applicant provides orders reducing him from pay grade E-4 to E-1 effective 7 December 1989, a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which reduced him from pay grade E-5 to E-4, and orders assigning him to the transition point.

4.  The applicant also provides:

	a.  an article from a local newspaper which reported that an inspector general (IG) complaint was filed against people in the applicant's command for an incident in 1986 which the applicant and another Soldier considered racially motivated.  The applicant had testified as an eyewitness to the event.  In the article the applicant was quoted as saying that after his testimony he had to cope with constant harassment which led to his emotional decline and inability to function normally as a husband and father to his children.  He added that he was facing disciplinary charges which stemmed from his testimony in the IG case.  The newspaper article reported that the Army determined the incident was done in fun and, therefore, was not racially motivated.

	b.  a Freedom of Information request for documents pertaining to the incident which led to the IG investigation.

	c.  an affidavit from the applicant concerning a sworn statement he made.

CONSIDERATION OF EVIDENCE:

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 AR20090020391 on 1 June 2010.

2.  The argument and documents provided by the applicant are new evidence and require that the Board reconsider its earlier denial of his request to upgrade his discharge.

3.  On 15 August 1988, the applicant signed a DA Form 2627 wherein his commander accused him of disobeying a lawful order.  The applicant initialed the block indicating he demanded trial by court-martial, but he lined through his initials and initialed the block indicating he did not demand trial by court-martial

4.  The applicant's records show that while a sergeant, as the noncommissioned officer in charge (NCOIC) of a firing squad at a military funeral, he was reprimanded on 25 August 1988 for leaving the magazines and blank ammunition in the unit day room.  The reprimand stated, "Your inattention to detail caused great embarrassment to your unit, chain of command, and the United States Army.  The impression left by your actions will long be remembered by the family of the deceased."

5.  On 19 October 1988, the applicant's commander initiated a bar to reenlistment based on the applicant's acceptance of two nonjudicial punishments.  The applicant elected not to make a statement in his own behalf and the bar to reenlistment was approved.

6.  On an unknown date (unreadable), the applicant signed a DA Form 2627 wherein his commander accused him of being absent without leave (AWOL) from 24 November 1989 to 27 November 1989.  The applicant initialed the block indicating he did not demand trial by court-martial.  His punishment included a reduction from pay grade E-5 to E-4.

7.  In the applicant's records are numerous general counseling forms which record the applicant being counseled for:

* failing to provide proper food for his wife and child
* failing to maintain his haircut
* attempting to make an unauthorized visit to the post sergeant major at his personal residence after duty hours
* intent to deceive by telling his commander he had a shaving profile before such a profile was actually issued
* failing to get permission to do personal business during normal duty hours
* being absent from formation
* failing to inform his chain of command as to why he was absent

8.  The discharge packet is not available.  On 8 December 1989, the applicant was given a UOTHC discharge under the provisions of Army Regulation 635-200 (Enlisted Separations) for misconduct, commission of a serious offense.  Item 15 (Member Contributed to Post-Vietnam Era Veterans' Educational Assistance Program) of the DD Form 214 he was issued is marked "Yes."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-12c applies to the separation of individuals who commit a serious military or civil offense if the specific circumstance of the offense warrants separation and a punitive discharge would be authorized for the same or a closely-related offense under the Manual for Courts-Martial.  When the Soldier is being considered for a discharge UOTHC, the Soldier is entitled to a board of officers to consider his case.  However, the Soldier may waive that right.

10.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, established policy for enlisted personnel management.  Paragraph 6-11 directed reduction to the lowest enlisted grade of individuals who were to be discharged UOTHC.

11.  The Post-Vietnam Era VEAP was established and implemented on 1 January 1977 as a contributory education program designed to replace the Vietnam era (pre-1977) GI bill.  Any Soldier entering the service between 1 January 1977 and 30 June 1985 was eligible to participate in the program.  The Soldier was required to contribute between $50.00 and $75.00 (later increased to $100.00) for a minimum of 12 months during his or her period of service.  The Army matched $2.00 for each $1.00 contributed by the Soldier.  The maximum educational assistance that could be received by the Soldier was $8,100.00 for a 3-year enlistment or $7,200.00 for a 2-year enlistment.  Service must have been under honorable conditions.  The benefits aspects of the program are operated by the Department of Veterans Affairs after the Soldier is released from active duty.  The Soldier's participation in the program was evidenced by a "yes" or "no" entry on the DD Form 214 in item 15.

DISCUSSION AND CONCLUSIONS:

1.  As noted by the Board in its previous consideration of this case, the applicant's discharge packet is not contained in his records.  Therefore, a presumption of regularity must be applied in the processing of his discharge that what the Army did was proper.  In this case, the applicant was administratively discharged.  Therefore, the discharge proceedings were not governed by the Manual for Courts-Martial.  Also, in the absence of proceedings by a board of officers, it must be presumed that the applicant waived his right to a board.

2.  The applicant was automatically reduced from pay grade E-4 to pay grade E-1 based on being given a UOTHC discharge.  There are no notification or appeal provisions for such a reduction.

3.  On the two DA Forms 2627 contained in the applicant's records, the applicant initialed the block indicating he did not demand trial by court-martial.  It is also noted that he did not contest his bar to reenlistment.

4.  The newspaper article submitted by the applicant shows an IG complaint was conducted on an incident in 1986 which the applicant and another Soldier considered racially motivated.  The applicant testified as an eyewitness to the event.   However, the investigation determined the incident was done in fun and, therefore, was not racially motivated.

5.  The applicant contends that he was harassed after he submitted a statement in the IG investigation.  However, it would appear that his actions (or lack of actions) were the cause of the following:

	a.  his reprimand for leaving the magazines and blank ammunition in the unit day room as the NCOIC of a firing squad at a military funeral,

	b.  disobeying a lawful order,

	c.  being AWOL,

	d.  failing to provide proper food for his wife and child,

	e.  failing to maintain his haircut,

	f.  attempting to make an unauthorized visit to the post sergeant major at his personal residence after duty hours,

	g.  telling his commander he had a shaving profile before such a profile was actually issued,

	h.  failing to get permission to do personal business during normal duty hours

	i.  being absent from formation, and

	j.  failing to inform his chain of command as to why he was absent.

6.  Clearly the above incidents were the result of the applicant's own misconduct or failure to perform the duties of his rank and position.

7.  In view of the foregoing, there is no basis to upgrade the applicant's discharge.

8.  Since the applicant's discharge remains unchanged, there is no basis for granting him 53 days of back pay.

9.  As for the applicant's VEAP deposit, since he was discharged UOTHC he is not entitled to VEAP benefits.  There are no provisions to refund VEAP contributions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice in the applicant's discharge.  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 AR20090020391, dated 1 June 2010.

2.  The Board further determined the evidence presented is insufficient to warrant the additional requested relief.  As a result, the Board recommends denial of so much of the application that pertains to 53 days of arrears in pay and his VEAP deposit.



      ____________X_____________
                 CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20100015806



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015806



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1