IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150007120 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests that the applicant's grade/rank be restored to specialist (SPC)/E-4. 2. Counsel states: a. The applicant received nonjudicial punishment under Article 15 for being disrespectful towards a commissioned officer. According to the applicant, while stationed in Panama, his unit went to the range. His platoon leader was upset because no one was doing well. After the exercise, his squad move back to the start position to review their actions. After the review, his platoon leader and his squad leader asked him what had happen on the left lane. He gave them an explanation. He gathered his gear to move to the road. The company commander called him over and asked if he had a problem. He responded that he did not have problem and did not know what he was talking about. The commander said he should smack him. b. The commander began saying derogatory things to him. This went on for about 10 minutes. He was at the position of attention and did not respond. He believed that the commander was going to take a swing at him. It was clear that the commander was frustrated due to the overall range performance. When he returned to the barracks his squad leader told him to keep his gear on and follow him. He was required to do exercises. He was tired and had trouble doing the exercises and he dislocated his shoulder. He is currently receiving compensation from the Department of Veterans Affair (VA) for his shoulder. c. He was counseled on 26 August 1997 for bumping a noncommissioned officer on the shoulder. The incident occurred on 22 August 1997; however, he denies the incident. He contends his shoulder was injured and he was receiving physical therapy. He was being very cautious with his shoulder at the time and would not have hit anyone with it. d. After receiving NJP, the applicant was unlawfully administratively discharged on the basis of the alleged misconduct. The applicant had over 6 years in service and should have been afforded a separation board. If he had been allowed to appear before a separation board, he would have been allowed to present facts which could have demonstrated his innocence, to include medical records to show he was mistreated by his command. e. Given the evidence, it was likely that he would have been retained in the Army. It was noted that when the applicant applied to the Army Discharge Review Board (ADRB) he provided a letter from his Brigade Commander. The commander indicated that he would have afforded the applicant a separation board if he knew he was entitled. f. The applicant wanted to be retained in the Army but was not afforded an administrative hearing. If he had been given a separation hearing, the applicant’s version of events would have been presented to the board. His commander would have had to testify and be cross-examined. The cross-examination would have highlighted the inconsistencies in his testimony and would have likely had a significant impact on the board. The applicant’s testimony would have made a compelling case for his retention on active duty. g. The applicant contends that if he had been allowed to remain on active duty he would have regained the rank he lost. The ADRB granted an upgrade of the applicant’s discharge to fully honorable. 3. Counsel provides: * DD Form 214 (Report of Separation or Discharge from Active Duty) * self-authored statement from applicant * medical documents * ADRB Decision * VA Rating Decision * letter to ADRB from Major General H (Retired) * two DA Forms 4856 (General Counseling Form) 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. After having had prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 15 April 1993. 3. He was counseled on at least seven separate occasions between 3 June 1997 and 27 October 1997 for the following offenses: * violating safety perimeters * being disrespectful * being late for duty * failure to obey lawful order * failure to train with squad * failure to participate in physical training 4. He received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 July 1997, for being disrespectful towards a superior officer. His punishment consisted of reduction to private/E-1(suspended to be automatically remitted it not vacated before 31 January 1997), forfeiture of $450 per month for 2 months, extra duty for 45 days, and restriction for 45 days. 5. A DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ), dated 15 September 1997 shows his suspended reduction to private/E-1 was vacated for being disrespectful in deportment toward a noncommissioned officer. 6. He received nonjudicial punishment on 2 December 1997 for failure to obey a lawful order, being disrespectful in deportment, using indecent language and being derelict in the performance of duty. 7. On 26 November 1997, the applicant's commander informed him by letter that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense. The commander advised the applicant of his right to have his case considered by a board of officers, to appear in person before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge and request his case be presented before a board of officers. 9. On 26 November 1997, he consulted with counsel who advised him of the basis for his contemplated separation action, its effects, and the rights available to him. After consulting with counsel, he elected to submit statements in his own behalf and exercise his right to counsel. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge (GD) was issued to him. 10. On 2 December 1997, he signed a memorandum, subject: Separation Under the Provisions of Chapter 14, Army Regulation 635-200 indicating that he was not entitled to an administrative separation board because he would have less than six years active and/or reserve military service at the time of separation. He further indicated that he would submit statements in his own behalf. 11. In his statement he stated: a. He asked that the separation board review his request for an honorable discharge (HD). He completed his first enlistment without any problems. During his first year at Fort Bragg, NC, he completed all of his duties in a military manner. He won Soldier of the Month in February 1997 and he was recommended for promotion by his platoon leader and company commander. He was a team leader and a promotable SPC. b. During his deployment to Panama he made some mistakes which resulted in non-judicial punishment. He was punished more when he returned from his deployment. He was moved to another company. He was not given a chance and he was labeled as a problem child and "attitude boy." c. He admitted that he had made some mistakes; however, he had been punished. He wanted to begin his civilian life with a clean slate. If he received a GD it would be difficult for him to find a job. He asked that his past performance be taken into consideration. 12. On an unspecified date, an authorized official approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct; directed he receive a GD Certificate; and directed that he would not be transferred to the Individual Ready Reserve. 13. On 27 January 1998, the applicant was discharged with a service characterization of general, under honorable conditions. He completed 4 years, 9 months, and 13 days of net active service this period. 14. He applied to the ADRB for an upgrade of his discharge on 1 February 2013. The ADRB voted to grant relief in the form of an upgrade of the characterization of his service to fully honorable. The ADRB determined that the reason for discharge was improper because he was denied an administrative separation board. The denial of the administrative separation board constituted a prejudicial error to the rights of the applicant. The action did not entail a restoration to the grade of SPC/E-4. 15. On 29 August 2013, he was issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty) with a service characterization of general, under honorable conditions. 16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include a pattern of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The unit commander must insure that an appropriate mental status evaluation is obtained for Soldiers recommended for separation under this chapter. A discharge under other than honorable (OTH) conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a GD if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of the regulation. b. 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. DISCUSSION AND CONCLUSIONS: 1. On 27 January 1998, the applicant was discharged with a service characterization of general, under honorable conditions. He completed 4 years, 9 months and 13 days of net active service this period. 2. He later applied to the ADRB and requested an upgrade of his discharge. The ADRB voted to grant relief in the form of an upgrade of the characterization of his service to fully honorable. The ADRB determined that the reason for discharge was improper because he was denied an administrative separation board. The denial of the administrative separation board constituted a prejudicial error to the rights of the applicant. The action did not entailed a restoration to the grade of SPC/E-4. 3. Although the ADRB granted him an upgrade of his characterization of service to fully honorable, this does not erase the fact that he was reduced in grade for misconduct prior to the initiation of his separation. The imposing authority determined that he violated the UCMJ and he subsequently accepted NJP, rather than demand trial by court-martial. 4. His punishment consisted of reduction to private/E-1 (suspended to be automatically remitted it not vacated before 31 January 1997). On 15 September 1997, his suspended reduction to private/E-1 was vacated for being disrespectful in deportment toward a noncommissioned officer. BOARD VOTE: ________ ________ ________ 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 that 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. ABCMR Record of Proceedings (cont) AR20150007120 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007120 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1