IN THE CASE OF: BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20150010927 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: 7 July 2016 DOCKET NUMBER: AR20150010927 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20120021368 on 20 June 2013. ______________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: 7 July 2016 DOCKET NUMBER: AR20150010927 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 previous request for an upgrade of his under other than honorable conditions discharge. 2. The applicant states: a. He served honorably until the incident. He believes that he was not afforded the opportunity to consult with counsel and be provided proper legal advice to defend himself against the allegations. He feels that the Army captain and sergeant who preferred the charges did him wrong. b. He was in the barracks on a Saturday in 1995. At the time he was 24 years of age. He and two of his friends parked behind the barracks where everyone parked. By the time they were exiting the car a sergeant approached the car and advised them that they could not park there. The two friends with him stayed at the barracks and they were all in civilian clothes. He told the sergeant that he would move the car once his friends exited. The sergeant got in his face and told him to move the car now before he kicked his a_ _. He told the sergeant that he would kick his a_ _ right back. They came face to face, the sergeant pointed at him, and he pointed at the sergeant. His friends grabbed him. c. On Monday morning when he arrived at work in the post office as a result of a profile for his knees, he was told to report to the barracks where the incident occurred. When he arrived at the office, he was the only black person in the room. The sergeant made a negative statement about him and stated that he [the applicant] had threatened him. The sergeant had witness statements, but he did not because the two friends who were with him (the applicant) were in the field that day. They believed the sergeant. He was advised of his two choices, either go to jail or receive a dishonorable discharge by court-martial. He was scared so he signed the paper to be discharged without knowing he could request some assistance. d. The sergeant knew that he (the applicant) was being processed for a medical discharge the following week. He did not know what to do and believes that he was railroaded. He was really hurt by what happened to him at Fort Campbell, KY. 3. The applicant provides: * Certificate of Achievement * Ground Surveillance Systems Operator Course diploma * Military Intelligence Membership Certificate * Air Assault School Certificate of Training * DA Form 3349 (Physical Profile) * Medical Evaluation Board (MEB) Narrative Summary (NARSUM) * Standard Forms (SF) 88 (Report of Medical Examination) and 93 (Report of Medical History) * first page of a DA Form 3947 (MEB Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (ABMCR) in Docket Number AR20120021368 on 20 June 2013. 2. The applicant's request for reconsideration is beyond the Board's one-year time limit. However, as an exception to policy, his new argument that he was not afforded the opportunity to consult counsel or provided proper legal advice prior to his discharge, is considered new evidence that will be considered by the Board. 3. He enlisted in the Regular Army on 21 January 1994 and he held military occupational specialty (MOS) 96R (Ground Surveillance Systems Operator). 4. His records contain and he provided a DA Form 3349, dated 3 October 1994, showing he was assigned a temporary physical profile for bilateral knee pain. 5. He was promoted to pay grade E-3 on 1 November 1994. 6. His records also contain: a. An MEB NARSUM showing he underwent an examination on 11 April 1995 for chronic bilateral knee pain and the inability to perform his MOS. An MEB was recommended. b. A DA Form 3947 showing an MEB convened on 7 July 1995, and considered his medical condition of chronic bilateral knee pain. The MEB referred him to a PEB and he concurred. c. A DA Form 199 (PEB Proceedings) showing a PEB convened on 4 August 1995 and found him medically unfit for chronic bilateral knee pain. The PEB recommended his disability separation with severance pay. He concurred and waived his right to a formal hearing and the board was approved on 18 August 1995. 7. His record is void of the complete facts and circumstances surrounding his discharge; however, his records further contain: a. Orders Number 324-0030, dated 20 November 1995, reassigning him for separation in pay grade E-1 under chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), effective 22 November 1995. b. A DD Form 214 discharging him on 22 November 1995, under the provisions of AR 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. He was credited with completing 1 year, 10 months, and 2 days of net active service. His service was characterized as under other than honorable conditions. 8. On 19 April 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – A member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must include the individual’s admission of guilt. The Soldier was required to sign the request indicating he understood he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. Paragraph 10-1 (Personal decision) – Commanders would ensure that a Soldier was not coerced into submitting a request for discharge in lieu of trial by court-martial. The Soldier would be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel would advise the Soldier concerning the elements of the offense(s) charged, burden of proof, possible defenses, and possible punishments. After receiving counseling, the Soldier could elect to submit a request for discharge in lieu of trial by court-martial. The Soldier’s written request would also include an acknowledgment that he/she understood the elements of the offense(s) charged and was guilty of the charge(s) or of a lesser included offense(s) therein contained which also authorized the imposition of a punitive discharge. c. Paragraph 10-2 – A Soldier could waive consultation with counsel. If the Soldier refused to consult with counsel, a statement to that effect would be prepared by the counsel and included in the file. The Soldier would also state that the right to consult with counsel was waived. Separation action could then proceed as if the Soldier had consulted with a counsel, or the general court-martial convening authority could disapprove the discharge request. The discharge request must be reviewed by the office of the staff judge advocate prior to approval by the separation authority. d. Paragraph 3-7a – An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. e. Paragraph 3-7b – A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 4-3 of the regulation stated an enlisted Soldier could not be referred for, or continue, physical disability processing when action had been started under any regulatory provisions which authorized a characterization of service of under other than honorable conditions. The regulation stated in: a. Paragraph 4-3a – An enlisted Soldier could not be referred for, or continue, physical disability processing when action had been started under any regulatory provisions which authorized a characterization of service of under other than honorable conditions. b. Paragraph 4-3b – Commanders exercising general court-martial jurisdiction over a Soldier could abate an administrative separation. DISCUSSION: 1. The applicant's record is void of the complete facts and circumstances surrounding his 1995 discharge. However, the evidence shows he requested a discharge under the provisions of chapter 10, AR 635-200. A Soldier requesting a chapter 10 discharge will be given reasonable time to consult with consulting counsel or they could waive that right. There is no available evidence and he provided none to support his contentions that he was not afforded the opportunity to consult with counsel and/or provided proper legal advice during his discharge process. His statements alone do not overcome the presumption of regularity in the processing of his discharge. 2. There is also no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. 3. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. His service did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010927 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010927 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2