BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20150018977 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ____x____ ____x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20150018977 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * deleting all of the entries from item 18 of his DD Form 214 and adding the following entries – * "BLOCK 6, PERIOD OF DELAYED ENTRY PRGRAM: 20100311 -20100727" * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20100728 UNTIL 20130304" * "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the character of his service for the period from 5 March 2013 through 10 December 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. BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20150018977 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, under honorable conditions discharge. 2. The applicant states that he has finished the period of waiting time for an upgrade of his discharge and feels he deserves an honorable discharge. He states that an unexpected family issue arose and he was needed at home. He requested leave and it was approved. His leave was then cancelled because of the behavioral health therapy he was receiving; however, he could not turn his back on his family. He states that his administrative discharge was due to misconduct, but he was a good Soldier who never got into trouble. 3. The applicant provides no additional documentary evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve on 11 March 2010 for a period of 8 years. He further enlisted in the Regular Army (RA) on 28 July 2010 for a period of 3 years and 28 weeks. a. He was awarded military occupational specialty 91A (M1 Abrams Tank System Maintainer). b. He was promoted to specialist (E-4) on 1 March 2012. 2. The applicant reenlisted in the RA on 5 March 2013 for a period of 3 years. 3. Seventeen DA Forms 4856 (Developmental Counseling Forms) show the applicant was counseled by members of his chain of command/supervision, during the period to 4 October 2012 to 27 September 2013, for: * failing to be at formation (five occasions) * failing to perform preventive maintenance checks and services * falsifying a Key Control Register and Inventory * satisfactory performance during July 2013 * satisfactory performance during August 2013 * his verbal expressions to go absent without leave (AWOL) * his unkempt personal appearance (being unshaven) as a Soldier * being AWOL on 16 September 2013 * being "considered high risk" after being flagged for disobeying a lawful order * referral for a mental health evaluation * indebtedness (failure to pay rent and utility bills) * unsatisfactory performance during September 2013 * adverse action (Flag): pending non-judicial punishment (NJP) and involuntary separation action 4. The applicant accepted NJP for violation of the Uniform Code of Military Justice (UCMJ), Article 90, for failing to obey a lawful command from his superior commissioned officer (on 14 September 2013), and Article 92, for failing to obey a lawful order (on 14 September 2013). His punishment included reduction to private/pay grade E-2, forfeiture of $849 pay for 2 months (suspended for 6 months), and 45 days of extra duty. He did not appeal the punishment. 5. A DA Form 3822 (Report of Mental Status Evaluation), completed on 2 October 2013, shows a licensed clinical social worker (LCSW) evaluated the applicant and determined he had no cognitive impairments, his behavior was cooperative, his perceptions normal, and he was impulsive, but not dangerous. a. It also shows the following diagnoses: Axis I: Adjustment Disorder with Anxiety and Depressed Mood; Axis II: None; Axis III: Chest Discomfort. Her additional comments show the applicant was screened for both post-traumatic stress disorder (PTSD) and mild traumatic brain injury and the results of the screenings were negative. b. The LCSW found the applicant could understand and participate in administrative proceedings, could appreciate the difference between right and wrong, and he met medical retention requirements. 6. On 28 October 2013, the applicant's commander notified him that he was recommending him for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c, based on commission of a serious offense. a. The reasons for his proposed action were the applicant failed to obey a superior commissioned officer, failed to obey a command policy letter (by driving to New Jersey to visit his family), and he gave a false official statement to a senior noncommissioned officer. b. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending he receive a general, under honorable conditions characterization of service. 7. Following the notification, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. a. He requested consulting counsel and representation by military counsel. b. He indicated that he would not submit statements in his own behalf. c. He acknowledged that he understood he could receive an honorable or a general, under honorable conditions discharge. He also acknowledged that he may expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions. d. The applicant and counsel (a staff judge advocate officer) each placed their signature on the document. 8. On 4 November 2013, the battalion commander recommended the applicant be discharged from service with a general, under honorable conditions characterization of service. 9. On 20 November 2013, the separation authority directed the applicant be discharged UP AR 635-200, paragraph 14-12c, with a general, under honorable conditions discharge. 10. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 28 July 2010 and he was discharged under honorable conditions (general) on 10 December 2013 UP AR 635-200, paragraph 14-12c, for misconduct (serious offense). He had completed 3 years, 4 months, and 13 days of net active service during this period. It also shows in item 18 (Remarks) – * Period of Delayed Entry Program: 30 March 2010 – 27 July 2010 * Member Has Not Completed First Full Term of Service 11. On 23 July 2014, the applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of the characterization of his service to honorable. On 5 June 2014, the ADRB notified the applicant the reason for his discharge and the character of his service were both proper and equitable and denied the applicant relief. 12. A review of the applicant's military personnel records and his administrative separation packet failed to reveal evidence that he was advised/informed the characterization of his service would be upgraded after a specified period of time. REFERENCES: 1. Manual for Courts-Martial (MCM), United States (2012 Edition), Table of Maximum Punishment includes the following offenses among those for which a punitive discharge is authorized - * Article 90 (Willfully disobeying superior commissioned officer) – 5 years * Article 92 (Failure to obey order or regulation) – 2 years 2. AR 635-200 sets forth the authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record. b. Chapter 3, 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. 3. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It contains item-by-item instructions for completing the DD Form 214. It shows item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks. a. For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)." b. However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." DISCUSSION: 1. The applicant contends, in effect, that his discharge should be upgraded because he was a good Soldier, he was unfairly processed for involuntary discharge based on misconduct, and he has finished the period of waiting time for an upgrade of his discharge to honorable. 2. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges based on the passage of a specified period of time. 3. The applicant's administrative discharge UP AR 635-200, paragraph 14-12c, for misconduct based on commission of serious offenses (that included failing to obey a lawful order or regulation and willfully disobeying a superior commissioned officer) was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the type of discharge directed, authority, and narrative reason shown on the applicant's DD Form 214 are appropriate and correct. 4. The evidence of record shows the applicant's company commander recommended the applicant for separation based on commission of a serious offense that included failing to obey a lawful order or regulation and also willfully disobeying a superior commissioned officer. a. The applicant was counselled on numerous occasions for his substandard performance as a Soldier and he received NJP for committing serious offenses. b. Both the company commander and battalion commander recommended a general, under honorable conditions discharge in the event the separation action was approved. c. The separation authority approved the applicant's discharge and directed his service be characterized as general, under honorable conditions. d. Based on the foregoing, it is reasonable to conclude that the applicant's entire record of service was considered by his chain of command when the separation authority directed the applicant's service be characterized as general, under honorable conditions. 5. The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA. a. The applicant enlisted in the RA on 28 July 2010 and he reenlisted in the RA on 5 March 2013. b. A DD Form 214 was not authorized to be issued when he was discharged on 4 March 2013 to reenlist in the RA. c. For Soldiers who have multiple continuous enlistments and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment. d. Item 18 of the applicant's DD Form 214 does not contain such an entry. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018977 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018977 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2