IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010879 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: 12 May 2016 DOCKET NUMBER: AR20150010879 BOARD DETERMINATION/RECOMMENDATION: 1. As for the character of service and associated reason, authority, and RE code, 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 to amend the decision of the ABCMR set forth in Docket Number AR20100012103, on 30 November 2010 and AR20110013901, on 18 January 2012. 2. As for the other administrative corrections he requested, 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: 12 May 2016 DOCKET NUMBER: AR20150010879 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 his earlier request for an upgrade of his under other than honorable conditions discharge, and as a new issue, correction of the authority and narrative reason for separation, and the reentry (RE) code. 2. He also requests, in effect, correction of his records as follows: * the social security number (SSN) shown on the Article 15, dated 14 June 1979 * his rank/grade at the time of his discharge * award of the Marksmanship Qualification Badge with Grenade Bar * completion of jungle training in Panama * the date he started Correctional Custody Facility 3. The applicant states the documents he is enclosing contain all the correct information, on medical, court-martial, and rank. There are many errors and mistakes that the Board should review. 4. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * seven Article 15s, including one, dated 14 June 1979 * Enlistment Contract * DA Form 2-1 (Personnel Qualification Record) * DD Form 458 (Charge Sheet) * Separation Orders * Letters from the Department of Veterans Affairs (VA) * Previous Record of Proceedings * Military Police Report CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which the Board summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100012103, on 31 November 2010, and AR20110013901, on 18 January 2012. 2. The applicant enlisted in the Regular Army on 10 February 19. His DD Form 4 (Enlistment or Reenlistment Agreement) and all allied documents listed his SSN as "2xx-5x-xx." 3. He completed basic combat and advanced individual training and he was awarded military occupational specialty 94B (Food Service Specialist). His DA Form 2-1 shows he qualified with the M-16 rifle on 14 March 19; however, it does not list the degree of qualification such as marksman, sharpshooter, or expert. 4. Following completion of training, the Army reassigned him to Fort Lewis, WA. He was assigned to Headquarters and Headquarters Company, 2nd Battalion, 1st Infantry Regiment, 1st Brigade, 9th Infantry Division. 5. On 1 August 19, he declined trial by a court-martial and accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order. His punishment consisted of a forfeiture of $97 pay for 1 month (suspended for 90 days) and 7 days of extra duty. He elected not to appeal. 6. On 10 August 19, his unit commander promoted him to private two (PV2)/E-2. 7. On 20 September 19, the commander ordered the suspension of punishment of forfeiture of $97 pay for 1 month vacated and executed. 8. On 28 November 19, he again declined trial by a court-martial and accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of $92 pay for 1 month (suspended for 90 days) and 7 days of extra duty and restriction. He elected not to appeal. 9. On 9 December 19, the commander ordered the suspension of punishment of forfeiture of $92 pay for 1 month vacated and executed. 10. On 12 January 1978, he declined trial by a court-martial and accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on four separate occasions and disobeying a lawful order. His punishment consisted of a forfeiture of $92 pay for 1 month and 7 days of extra duty and restriction. He elected not to appeal. 11. On 3 February 1978, a DD Form 261 (Report of Investigation) was completed and showed the applicant missed work on 25 December 19 because of drug overdose/attempted suicide. He attempted self-destruction when mentally sound. His action resulted from misconduct and the appointing authority found it “Not in Line of Duty-Due to Own Misconduct.” The approval authority approved this finding on 1 March 1978. 12. On 30 June 1978, his commander promoted him to private first class/E-3. 13. On 29 November 1978, he declined trial by a court-martial and accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order and wrongfully possessing a meal card. His punishment consisted of a forfeiture of $113 pay (suspended for 30 days) and 10 days of extra duty. He elected not to appeal. 14. On 25 May 1979, his commander notified him that he was considering whether he should be punished under Article 15, UCMJ, for violating Article 90, disobeying a lawful order. * on 14 June 1979, after having consulted with counsel, he declined trial by a court-martial and elected a closed hearing * on 14 June 1979, his commander found him guilty of willfully disobeying a lawful order from a superior commissioned officer on or about 7 May 1979; his punishment consisted of 7 days of Correctional Custody Facility, a reduction to PV2/E-2, and a forfeiture of 7 days' pay ($109) * on 14 June 1979, he submitted an appeal to the next higher commander and on 15 June 1979, the next higher commander denied his appeal and notified him of the decision * the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) listed his name, unit, grade, and commanding officer correctly but listed his SSN as "29x-3x--6xxx" (a different SSN) 15. On 30 May 1979, Military Police (MP) officials observed a vehicle that failed to stop at a red light. The MPs stopped the vehicle and upon approaching it, detected the smell of burning marijuana. The MPs searched the vehicle and found a pistol. The applicant waived his rights. He stated the weapon belonged to a friend but would not release the name. 16. The MPs completed their investigation and determined the applicant was in possession of a concealed stolen weapon. The MP Report shows the MPs released him to his unit for action by his commander. 17. On 9 July 1979, the commander partially completed the DA Form 3975 (Commander’s Report of Disciplinary Action Taken). He would later enter the remarks “SM (service member) is pending a court-martial” and “SM received chapter 10 discharge on 2 August 1979.” 18. Meanwhile, on 19 July 1979, his commander preferred court-martial charges against him for two specifications of failing to go at the time prescribed to his appointed place of duty and one specification of unlawfully carrying a concealed weapon. The DD Form 458 shows: * on 20 July 1979, the commander appeared before the Adjutant and signed the charges and specifications * on 3 August 1979, the convening authority referred him for trial by a special court-martial * on 3 August 1979, the Adjutant served the applicant with a copy of the charges 19. The applicant consulted with legal counsel who advised him of his rights. He also advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, and the possible effects of a request for discharge. Following consultation with legal counsel, on 13 August 1979, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he did not desire any further rehabilitation under any circumstances and that he had no desire to perform further service * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge * he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf (not available for review) 20. On 23 August 1979, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with AR 635-200, chapter 10. The separation authority directed the applicant’s reduction to the lowest enlisted grade and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 4 September 1979, the applicant was accordingly discharged. 21. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service - in lieu of trial by a court-martial with an under other than honorable conditions discharge. This form confirms and/or shows in: * item 6a (Grade, Rate or Rank), PV1 and item 6b (Pay Grade) shows E-1 * item 7 (Date of Rank), 23 August 1979 * item 9c (Authority and Reason), the authority for separation as chapter 10, AR 635-200 and narrative reason for separation as separation program designator (SPD) code “JFS” * item 10 (Reenlistment Code) the RE code of 3 * item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) award of the M-16 Qualification Badge * item 18 (Remarks) the entry “Conduct Triable by Court-Martial” 22. On 23 June 1982, the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade. 23. On 23 March 2010, he petitioned the ABCMR for an upgrade of his discharge (AR20100012103) but the Board denied his request on 30 November 2010. 24. On 23 June 2011, he requested reconsideration of his request for an upgrade of his discharge (AR20110013901). However, on 18 January 2012, the Board denied his request. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an under other than honorable conditions discharge was considered appropriate at the time. a. Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a provides that 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. c. 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. 2. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. It states: * items 6a and 6b will show the active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion and reduction orders * item 7 will show the effective date of rank * item 9c shows the authority for separation and the SPD code * item 10 shows the RE code * item 26 lists all awards and decorations * item 18 shows mandatory entries or entries that are too long for their respective blocks 3. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 includes a list of the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible for enlistment unless a waiver is granted * RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment 4. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JFS was the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, chapter 10, in-lieu of trial by court-martial. Additionally, the RE/SPD Cross Reference Table in effect at the time stated that SPD code JFS had a corresponding RE code of 3. 5. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice and/or direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. Chapter 2 provides for the ABCMR’s establishment and functions. It states in: a. Paragraph 2-2, the ABCMR will decide cases on the evidence of record. It is not an investigative body. b. Paragraph 2-15 (Reconsideration of an ABCMR decision) that an applicant may request the reconsideration of an ABCMR decision under the following circumstances: (1) If the ABCMR receives the request for reconsideration within 1 year of the original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted), that was not in the record at the time of the ABCMR’s prior consideration. If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice. If no new evidence is found the ABCMR staff will return the application to the applicant without action. (2) If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR’s original decision or after the ABCMR has already considered one request for reconsideration, the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction. 6. AR 600-8-22 (Military Awards) sets forth requirements for award of basic marksmanship qualification badges. The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman – in which an individual has qualified in a prescribed record course. An appropriate bar is furnished to denote each weapon with which the individual has qualified. For example, Expert Marksmanship Qualification Badge with Rifle Bar or Sharpshooter Marksmanship Qualification Badge with Pistol Bar or Marksman Marksmanship Qualification Badge with Automatic Rifle Bar. Award of marksmanship qualification badges is not permanent. An award for a previous marksmanship qualification is revoked automatically whenever an individual, upon completion of firing a record course for which the previous award was made, has not attained the same qualification. DISCUSSION: 1. The applicant requests reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge, and as a new issue, correction of the authority and narrative reason for separation, and the RE code. He also requests, in effect, correction of his records as follows: * the SSN shown on the Article 15, dated 14 June 1979 * his rank/grade at the time of his discharge * award of the Marksmanship Qualification Badge with Grenade Bar * completion of jungle training in Panama * the date he started Correctional Custody Facility 2. With respect the character of service, authority and narrative reason, RE code, and rank/grade at separation: a. The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10 are voluntary requests for discharge in-lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. b. The charge sheet was prepared by the commander on 19 July 1979 and the convening authority referred the charges to a special court-martial on 3 August 1979. The applicant was served with court-martial charges on 3 August and he subsequently consulted with counsel. Counsel presented him with his right and options. Following consult with counsel, on 13 August 1979, the applicant voluntarily submitted a request for discharge. He acknowledged that he had not been coerced into making this request and that he was making this request of his free will. c. A request for voluntary discharge under chapter 10 can only be triggered if court-martial charges have been preferred against the member. The charges would be dropped upon acceptance and approval of the voluntary request for discharge. In his request, the applicant voluntarily chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge. He could have elected trial by a court-martial if he believed he was innocent of the charges. d. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory. There is no basis for upgrading his discharge to either an honorable or a general discharge. e. His narrative reason for separation and separation code were assigned because he was discharged under the provisions of AR 635-200, chapter 10, in-lieu of trial by court-martial. Absent the offense for which he was charged, there was no reason to prefer court-martial charges against him, and absent the court-martial charges, there was no reason to process his discharge. f. The narrative reason and separation code associated with this type of discharge are "In Lieu of Trial by Court-Martial" and SPD "JFS." Additionally, the appropriate RE code associated with this reason and separation code was RE-3 (it is RE-4 now). He received the appropriate reason and RE code associated with his discharge and there is no reason to change either entry. g. The regulation in effect then (and the one currently in effect) stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. Regardless of the applicant's rank at the time court-martial charges were preferred against him, once the separation authority approved his discharge, he also ordered the applicant's reduction to the lowest enlisted grade. 3. The only marksmanship badge listed on his DA Form 2-1 is the M-16 badge, albeit without the qualification level. This explains why his DD Form 214 also does not list the degree of qualification. In any case, there is no evidence such as an order, a memorandum, and entry on his DA Form 2-1, a firing record, or any other evidence to show he qualified with the grenade weapon system and the degree of qualification. 4. There is no evidence in his records that shows he completed training in Panama. His records clearly show he was assigned to Fort Lewis, WA. His DA Form 2-1 does not list such training and his service record does not contain a certificate of training supporting his contention. 5. With respect to the Article 15, dated 14 June 19: a. Aside from the SSN, the personal/personnel information listed on this form are consistent with his data, including his name, unit of assignment, duty location, grade, and the name of his commander. It appears that his SSN was incorrectly typed on this form. This is a harmless error and neither negates his offense nor affects the resultant punishment. He was not disadvantaged by this administrative error. b. The applicant was provided a defense attorney, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels. The argument he now presents regarding the SSN is not sufficient to change the determination of guilt made by the commander. His dissatisfaction with the outcome of this Article 15 does not invalidate it. He violated the UCMJ and he was punished accordingly. There is neither an error nor an injustice. c. Additionally, the ABCMR limits corrective action to documents that can be individually reviewed after a Soldier's separation. Since the DA Form 2627 is not normally accessible by individuals other than the Soldier, and since the erroneous SSN entry on this form did not disadvantage him, there is no basis for the Board to correct it. d. The resultant punishment consisted of 7 days of Correctional Custody Facility, a reduction to E-2, and a forfeiture of pay. The Army Correctional Custody Facility was designed to rehabilitate enlisted Soldiers who committed minor disciplinary infractions by recreating the resocialization process that occurs during basic training. It was primarily directed toward re-instilling respect for authority, and emphasis on immediate and unquestioning reaction to orders and discipline. e. Due to the short duration of his Correctional Custody Facility and the availability of such facility at his duty station (Fort Lewis) at the time, there would have been no travel or reassignment involved. Neither his DA Form 2-1 nor his DD Form 214 would list the time he spent at the Correctional Custody Facility or the date he began/ended such punishment. //NOTHING FOLLOWS/ ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010879 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010879 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2