BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20150018574 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 BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20150018574 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. BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20150018574 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 general discharge. 2. The applicant states: a. He has always felt that his general discharge was not warranted and he should have been allowed to complete his career in the Army. He believes his discharge was a miscarriage of justice. He does not have any paperwork to submit; however, his Army records can possibly substantiate some of his claims. He never received any disciplinary actions during his first 4 years of service. He was awarded the Army Good Conduct Medal at the end of his first enlistment. b. He reenlisted several weeks prior to his assignment to Camp Casey, Korea. He was recently engaged prior to this assignment. Once at his duty station, he began feeling depressed due to being away from his fiancée and loved ones. This was his second overseas tours after serving stateside for 18 months. After a few weeks in Korea, he ingested almost a bottle of Extra Strength Tylenol. He was not attempting to commit suicide, but he thought somehow he could be separated from the Army and return to the United States to be near his fiancée. Unfortunately, his chain of command did not believe the medical notes from his visit to the emergency room. He can only conclude the pills had dissolved in his system by the time he visited the emergency room. His commander therefore thought he was not telling the truth and issued him nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). c. After serving his punishment of extra duty, things were normal for about 1 month with no incidents. He ran up his calling card debt by telephoning his fiancée almost every day. Another Soldier, who felt sorry for him, offered him the use of his calling card. Unfortunately, he copied the Soldier's calling card number and continued to use this number. He was going to reimburse the Soldier for all the charges he made. The bill was about $1,000.00. He believes he paid the Soldier at least $300.00. However, this was not enough to prevent the Soldier from reporting to his chain of command. He did everything in his power to resolve this debt. However, by the time the accusation reached his chain of command they seemed determined to punish him. d. At the time of his field-grade Article 15 hearing, he presented evidence showing he was attempting to repay the Soldier for the phone bill. The hearing convening authority would not let him offer an explanation and administered NJP. He was in shock because he had served honorably during his first enlistment. He could not believe he was being punished because he had begun repaying the Soldier. Since his discharge, he has been a model citizen and has had no trouble with law enforcement, except for a speeding ticket. He has worked for several companies since his discharge and disclosed his general discharge in his employment applications. He feels this discharge has hurt his chances of working for police departments in Texas. He thinks he has been punished enough. He has been married for 21 years and has four children. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 the cases 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. 2. The applicant enlisted in the Regular Army on 24 August 1989 and he held military occupational specialty 11B (Infantryman). He was promoted to E-4 on 1 November 1990. He served in Germany from 17 December 1989 to 20 December 1991. 3. On 27 October 1992, he was awarded the Army Good Conduct Medal for his period of service from 24 August 1989 to 23 August 1992. He reenlisted on 3 February 1993. 4. On 17 December 1993, the applicant's immediate commander recommended his removal from the Promotion Standing List for sergeant for continuous patterns of misconduct. The recommendation was approved on 20 December 1993. 5. On 12 January 1994, he accepted NJP under the provisions of Article 15, UCMJ, for making a false statement to medical personnel with intent to deceive. His punishment consisted of suspended reduction to E-3, forfeiture of $254.00 pay for 1 month, and restriction and extra duty for 14 days. 6. On 25 January 1994, the applicant's commander recommended the his bar from reenlistment due to the issuance of NJP for falsifying a statement and showing a pattern of marginal conduct. The bar was approved on 31 January 1994. 7. He was counseled between January and March 1984 for failing to follow guidance, not communicating with his squad leader, leaving without permission, committing possible larceny, failing to return to his place of duty, performance, and disobeying a lawful order. 8. That portion of the punishment suspended on 12 January 1994, which included reduction to pay grade E-3 and a forfeiture of pay, was vacated on 9 March 1994. 9. On 4 April 1994, he underwent a mental status evaluation and was psychiatrically cleared for any administrative action deemed appropriate by his chain of command. 10. On 13 April 1994, he accepted NJP under the provisions of Article 15, UCMJ, for falsely pretending to a telephone operator he was the authorized user of a calling card belonging to another Soldier between 13 January and 14 February 1994. His punishment consisted of reduction to E-1, forfeiture of $420.00 pay for 2 months, and restriction and extra duty for 45 days. His appeal was denied on 18 April 1994. 11. On 25 April 1994, the applicant’s company commander initiated separation action against him for commission of a serious offense under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-12c. He stated the reasons for the proposed action were the applicant's use of another Soldier's phone card without authorization, making long distance telephone calls, and making a false statement to medical personnel regarding a large quantity of Indocin tablets. The applicant was advised of his rights. 12. On 25 April 1994 after consulting with counsel, the applicant acknowledged receipt of the proposed separation. He also acknowledged he could receive a general discharge and the results of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 13. On 26 April 1994, the applicant's battalion commander recommended his separation with a general discharge. 14. On 27 April 1994, the separation authority approved the recommendation and directed the issuance of a general discharge. 15. He was discharged accordingly on 19 May 1994. His DD Form 214 shows he completed 4 years, 8 months, and 25 days of active service. His service was characterized as under honorable conditions (general). His DD Form 214 shows he was awarded or authorized the: * Army Service Ribbon * Army Lapel Button * National Defense Service Medal * Overseas Service Ribbon * Air Assault Badge * Army Good Conduct Medal (1st Award) * Sharpshooter Marksmanship Qualification Badge with Rifle (M16) and Hand Grenade Bars 16. There is no indication he applied to the Army Discharge Review Board within its 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. An honorable discharge is a separation with honor. 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 was otherwise so meritorious that any other characterization would be inappropriate. b. Paragraph 14-12c, in effect at the time, stated Soldiers would be separation for the commission of a serious military or civil offense, if the specific circumstances of the offense warranted separation and a punitive discharge would be authorized for the same or a closely related offense under the uniform code of military justice. The issuance of a discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the member's overall record. DISCUSSION: 1. The applicant accepted NJP under the provisions of Article 15 twice, he was removed from the Promotion Standing List for sergeant, and he was barred from reenlistment due to his misconduct. His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense. The separation authority approved the recommendation with the issuance of a general discharge. 2. It appears his overall record of service prior to the events which led to his NJPs and subsequent discharge was the basis for receipt of a general discharge instead of a discharge under other than honorable conditions. 3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. He was properly discharged in accordance with pertinent regulations with due process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018574 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018574 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2