IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150002496 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150002496 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. _____________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. IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150002496 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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD). 2. The applicant states: a. He was held beyond his 10 October 2005 expiration term of service (ETS) date and discharged on 16 March 2006 under Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c. b. Army Regulation 635-200, paragraph 1-26, clearly states, "Retention beyond a Soldier’s ETS to process administrative separation proceedings pursuant to this regulation is not authorized." c. His unit, Regimental Headquarters and Headquarters Troop (RHHT) 3d Armored Cavalry Regiment (ACR) - Non-Deploy, maintained he was subject to the Active Army (AA) Stop Loss/Stop Movement (SL/SM) Program. However, the SL/SM policies (i.e. Military Personnel (MILPER) Messages 04-032, paragraph 8, section F; 04-169, paragraph 6, section D; and 06-232, paragraph 8, section D, all clearly state Soldiers whose quality of service warrants separation are not subject SL/SM. This includes but is not limited to Soldiers pending adverse personnel actions to include involuntary separation or voluntary resignation in lieu of elimination or for the good of the service. (e.g., misconduct, poor duty performance, qualitative management program, alcohol or drug rehabilitation failure, or punitive discharges under the provisions of the Uniform Code of Military Justice (UCMJ). d. His Enlisted Record Brief (ERB) shows he was assigned to Tank Company, 2nd Battalion, 3rd Armored Calvary Regiment from 9 March 2009 (sic, should be 2004) until 15 February 2005 and placed on SL/SM for the upcoming deployment. His command decided he would not deploy and reassigned him to the 3rd ACR - Non-Deploy. The expiration term of service (ETS) date shown on his Leave and Earning Statements reflect the change from SL/SM in February, to his contractual date of 10 October 2005, in March because the unit/command had begun his process for separation under Chapter 14-12c. Part one of his chapter packet shows the Army conducted his physical in April 2005 and completed part two in May 2005. In June, he fell within the 90-day maximum window, with acquired leave, to begin the process for ETS separation from the Army. The command realized this, and once again placed him on the SL/SM to prevent him from separating from the Army prior to the completion of the Chapter 14-12c. e. On 17 August 2005, he was convicted of the offense for which he was initially being processed for separation. This was the final piece of paperwork needed to complete his Chapter 14-12c packet. However, the command did not proceed to finalize his chapter processing until the point he once again fell within his 90-day maximum window, with acquired leave, to begin the process for ETS separation from the Army. The command abused the SL/SM policy to hold him in the unit as long as they could and still discharge him under the provisions of Chapter 14-12c. There is substantial documentation that shows the intent of the command to separate him under the Chapter 14 process, yet the command ignored and misused the policies of higher command, demonstrating a violation of the chain of command. f. According to AR 635-200, paragraph 1-26, he should not have been retained beyond his ETS date for the processing of an administrative separation, and according to paragraph 4-5, he should have separated upon expiration of enlistment or fulfillment of service obligation and been awarded an honorable character of service. Therefore, the applicant asks this Board to uphold the policies set forth by the chain of command and change his discharge to an honorable discharge and the reason for separation in accordance with AR 635-200. 3. The applicant provides the indexed list of documents shown on his application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military records show he enlisted in the Regular Army on 3 June 1999. He continued to serve until he received an honorable discharge from the Army on 10 October 2002, for the purpose of immediate reenlistment. 3. On 11 October 2002, the applicant reenlisted in the Regular Army for a period of 3 years. He held military occupational specialty 19K (M1 Armor Crewman). On 1 April 2003, the Army promoted the applicant to sergeant/E-5. 4. His Official Military Personnel File (OMPF) includes two permanent orders (PO) issued by Delta Detachment, 502nd Personnel Services Battalion, Fort Carson, Colorado. These orders announced his award of the Army Good Conduct Medal (AGCM) for exemplary behavior, efficiency, and fidelity for the periods indicated: * PO Number (#) 293-019, dated 19 October 2004, for the period 3 June 1999 to 2 June 2002 * PO #178-010, dated 27 June 2005, for the period 3 June 2002 to 2 June 2005 5. On 11 August 2005, based on misconduct, the applicant underwent a mental status evaluation that showed the following: * his behavior and thought content were normal * he was fully alert and oriented * his mood was unremarkable * his thinking process was clear * his memory was good * he met retention requirements * he was mentally responsible * he was able to distinguish right from wrong and adhere to the right and he had the mental capacity to understand and participate in separation proceedings * he was cleared for any administrative action deemed appropriate by his command 6. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG) effective 22 August 2005, shows action to suspend favorable personnel actions (FLAG) against him occurred based on his recommended elimination. 7. His OMPF contains a DA Form 4856 (Developmental Counseling Form) dated 20 October 2005. It shows he was notified of his superior noncommissioned officer’s recommendation for his separation from the Army under paragraph 14-12c, Army Regulation 635-20 [sic], due to his civil conviction. 8. On 12 December 2005, the unit commander initiated separation action against the applicant under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c(2) (Commission of Serious Offense) for “attempted sexual assault on a child under 16.” The applicant acknowledged receipt of the notification of separation action on 12 December 2005. 9. On 13 December 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects. The applicant completed his election of rights indicating his options to: * request consideration of his case by an administrative separation board * request personal appearance before an administrative separation board * not submit a statement on his own behalf * request consulting counsel and representation by military counsel and/or civilian counsel at his own expense 10. On 10 January 2006, the separation authority appointed an administrative separation board to determine whether the applicant should be discharged for the commission of a serious offense pursuant to paragraph 14-12c of Army Regulation 635-200. A partially legible document included in the applicant’s separation packet shows official(s) from the Canon City Police Department, Colorado Springs, Colorado, arrested the applicant on the offenses of enticement of a child and attempted sexual assault on a child on 27 August 2004. 11. On 9 February 2006, the applicant completed a DA Form 2823 (Sworn Statement). He stated: * his actions in August 2004 were wrong and landed him in serious trouble * he argued his case until he agreed with the plea offer, plead guilty, and assumed the consequences of his actions * he made a stupid mistake like everyone else makes from time to time * he knew having any sexual contact with a minor was illegal, but unware that talking and meeting a minor was illegal * he went down there out of curiosity * he had a feeling she was lying about her age and did not intend on having sexual contact with a minor * he learned from his mistake and hopes that other Soldiers will likewise * he owned up to his obligation outside the Army and tried to take care of his civil matters on his own time * he liked to remain in the service, continue to deploy in support of the global war on terrorism, and he learned from his actions 12. On 10 February 2006, an administrative separation board convened to determine if the applicant should be discharged from military service prior to his expiration of normal term of service (ETS). After considering all of the evidence before it, the administrative separation board, by unanimous vote, recommended the applicant be separated from the Army with a UOTHC discharge for his attempted enticement and sexual assault on a child under the age of sixteen. 13. On 3 March 2006, an administrative law attorney, Staff Judge Advocate, provided a legal review of the administrative board proceedings. He stated the procedure used by the board was in accordance with the applicable regulation and the evidence provided supported the findings and recommendation made by the administrative separation board. 14. The applicant’s OMPF includes copies of his ERB, dated 15 November 2005 and 10 March 2006. Section 1 (Assignment Information) lists code “S” under “Delay Separation Reason” indicating “stop loss.” 15. On 13 March 2006, the separation authority approved the findings and recommendations of the administrative separation board and directed that the applicant be separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense, with a UOTHC discharge. On 16 March 2006, the Army discharged the applicant accordingly. 16. The DD Form 214 issued to the applicant upon his discharge on 16 March 2006, confirms he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct (serious offense). It shows he completed a total of 6 years, 9 months, and 14 days of creditable active military service and held the rank of private/E-1 at the time of his discharge. 17. On 29 February 2008 and 7 October 2013, after having carefully reviewed the applicant’s record and the issues he presented, the ADRB concluded the reason for his discharge and characterization of service were both proper and equitable, and voted to deny his request. 18. The applicant provides a copy of his DFAS Forms 702 (Defense Finance and Accounting Service (DFAS) Leave and Earning Statement (LES)) for the months January through December 2005, which show the following ETS dates: * January – February 2005, ETS date of “30 June 2006” * March – May 2005, ETS date of “10 October 2005” * June - December 2005, ETS date of “30 April 2006” 19. The applicant’s evidence also includes the following three MILPER Messages: a. MILPER Message #04-032, dated 22 November 2003, subject: Implement Active Army Unit SL/SM Program, which went into effect 1 January 2004; b. MILPER Message #04-169, dated 2 June 2004, subject: Implementation of Active Army Unit SL/SM Program for Units Scheduled to Deploy Outside the Continental United States (OCONUS) in Support of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) as approved by the Assistant Secretary on 1 June 2004; and c. MILPER Message #06-232, dated 22 August 2006, subject: Implementation of Active Army Unit SL/SM Program for Units Scheduled to Deploy OCONUS in Support of OIF and OEF. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-26 provides guidance on retention for miscellaneous reasons. It states that retention beyond a Soldier’s ETS to process administrative separation proceedings pursuant to this regulation is not authorized. If it is desirable to retain an RA Soldier beyond the ETS for any reason other than those covered by paragraphs 1-21 through 1-24, request for approval of such action must be submitted to Headquarters, Department of the Army (AHRC-ERP-F). b. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL. The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An honorable (HD) or a GD may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge UOTHC is normally considered appropriate for members separated under these provisions. c. Paragraph 3-7a provides that an HD 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. d. Paragraph 3-7b provides that 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. DISCUSSION: 1. The applicant contends his UOTHC discharge requires an upgrade to an honorable discharge because his command wrongly retained him on active duty under the provisions of SL/SM for administrative separation processing. There is insufficient evidence to support this claim. 2. The evidence of record confirms the applicant last reenlisted in the RA on 11 October 2002 for 3 years. Accordingly, minus any extensions, additional reenlistments, a change in the Army retention policy, or early separation action, he would have reached his contractual ETS on 10 October 2005. However, in June 2005, the applicant received his last extension on active duty through 30 April 2006 under the SL/SM provisions, as evidenced by his June 2005 LES. Simultaneously, on 27 June 2005, the applicant received his second award of the AGCM. This indicates his command found his service honorable at that time and either was unaware of any civil charges against him or did not assume his guilt. As such, there would have been no basis to start/stop separation proceedings as he claims or to process him for separation for misconduct at that time. 3. The applicant did not provide sufficient evidence to corroborate his claim his command wrongly held him on active duty under SL/SM provisions in order to administratively separate him from the Army under paragraph 14-12c, Army Regulation 635-200. It is just as likely that administrative error caused the changes in the ETS dates shown on his LES documents. Absent any official documents explaining the ETS date changes shown on his LESs, there is an insufficient evidentiary basis to substantiate the applicant’s claim. 4. In a sworn statement, the applicant pled guilty to the charges, which ultimately led to his civil conviction. As a result, through his own misconduct, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an HD or GD. 5. The evidence of record further confirms the applicant's separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Accordingly, there is no basis to grant the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002496 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002496 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2