BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001172 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: 3 August 2017 DOCKET NUMBER: AR20160001172 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: 3 August 2017 DOCKET NUMBER: AR20160001172 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, in effect, correction of his military records to show he received an honorable discharge from the New Jersey Army National Guard (NJARNG) in lieu of a general discharge. He also requests an opportunity to personally appear before the Board. 2. The applicant states, in effect, that he was discharged from the NJARNG with a general discharge. He argues that he served 12 years in the Regular Army (RA) where he earned many awards and decorations. He served in the Republic of Vietnam fighting a hostile enemy. His last assignment in the RA was in the Federal Republic of Germany. He only served in the NJARNG for 1 year. He joined the NJARNG after the terrorist attack on 11 September 2001. Based on his overall service, he contends that his characterization of service from the NJARNG is unjust. 3. The applicant provided the following documents with his application: * DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 5 March 1974 * DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release from Active Duty), dated 21 December 1982 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 21 December 1982 4. The applicant provided, in a later submission, approximately 200 pages of military awards and/or decorations, as well as other related documents. 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. On 30 December 1970, the applicant enlisted in the RA in the rank/pay grade of private/E-1. He was trained as an infantryman. He attained the rank of specialist four, pay grade E-4 on 3 November 1971 and he was honorably released from active duty on 22 February 1974 and transferred to the U.S. Army Reserve (USAR). 3. He enlisted in the RA on 5 March 1974 and he was honorably discharged on 21 December 1982 in the rank of sergeant, pay grade E-5, after serving a total of 11 years, 11 months, and 10 days. 4. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the NJARNG on 8 February 1983 and he was honorably discharged on 7 February 1984, due to expiration of term of service, in the rank of SGT/E-5. 5. An AHRC Form 2496 (Statement of Service), shows the applicant enlisted in the USAR on 10 May 1984 in the rank of private first class, pay grade E-3. He was discharged on 29 May 1984 for the purpose of enlisting in the RA. He served in the RA from 30 May to 16 August 1984. 6. On 2 March 1988, he again enlisted in the USAR. He was promoted to staff sergeant, pay grade E-6 on 12 April 1991, and to sergeant first class, pay grade E-7 on 9 August 1993. 7. A memorandum, dated 27 October 1994 from the Commander, Ranger Training Brigade, Fort Benning, Georgia, in response to an inquiry from the applicant’s chain of command, stated there was no record showing the applicant had ever qualified to wear the Ranger Tab on his military uniform. 8. A memorandum, dated 9 April 1995, instructed the Commander, 76th Division, to ensure the applicant removed the Ranger Tab from his uniform. 9. A letter from the Internal Review Department, 76th Division, to the applicant, dated 26 September 1995, informed him that an Army Regulation (AR) 15-6 investigation was being conducted into the possible misrepresentation of military awards and/or decorations, as well as related information contained in his official military personnel file (OMPF). He was instructed to contact that office immediately to arrange for an appointment in his unit with a member of the staff. This meeting was to provide him an opportunity to justify information contained in his OMPF and to provide originals or certified copies of awards, orders, and related items. 10. In a memorandum, dated 8 September 1997, the applicant’s commander informed him that he was initiating action to separate him from the USAR for commission of a serious offense in violation of the Uniform Code of Military Justice. The specific reasons for this action were: a. According to a report by the Criminal Investigation Division, dated 4 August 1997, he had, since 1995, impersonated a commissioned officer by successively wearing the rank of captain, major, and lieutenant colonel, ranks to which he had not been lawfully promoted. b. He had made false official statements with the intent to deceive and presented forged documents indicating promotion to the above-referenced commissioned ranks. c. He had, knowingly and with intent to deceive, repeatedly worn several badges and qualification tabs to which he was not entitled on his uniform, including the Ranger and Special Forces Tabs and the Drill Sergeant Badge. d. Additionally, the applicant was informed that he was being recommended for discharge under other than honorable conditions. He was further told that approval of this action could result in a discharge from the USAR, reassignment from his USAR unit to the Individual Ready Reserve, or release from custody and control of the Army. Action was suspended for 45 days to allow him an opportunity to exercise his right to consult with counsel, submit a written statement, obtain copies of documents, and/or request a hearing before an administrative separation board. 11. On 30 October 1997, the commander recommended separation action against the applicant, as discussed above. 12. The AHRC Form 2496 discussed in paragraph 5 above also shows the applicant was discharged from the USAR on 5 February 2001 with an under other than honorable conditions characterization of service in the rank of private, pay grade E-1. 13. A memorandum from the Commander, Company A, 1st Battalion, 114th Infantry, NJARNG, dated 11 October 2001, for the Adjutant General, NJARNG, states the commander interviewed him and found him to be sincere about his career and asked for consideration to enlist him into the NJARNG. 14. A memorandum, NJARNG, dated 17 October 2001, approved the applicant’s enlistment request in the rank of sergeant first class, pay grade E-7, provided he was otherwise qualified. Records show he enlisted effective the day prior to this memorandum. 15. An NJARNG memorandum, dated 2 January 2002, notified the applicant of his eligibility to receive retired pay at 60 years of age (20-Year Letter). 16. Orders 294-040, State of New Jersey, dated 21 October 2002, announced the applicant’s reduction to private, pay grade E-1, effective 16 October 2001, the date of his enlistment into the NJARNG. The reason was erroneous enlistment in pay grade E-7. 17. NGB Form 22 and subsequent Orders 343-038, State of New Jersey, dated 9 December 2002, announced the applicant’s separation from the NJARNG due to erroneous enlistment or extension. He received an under honorable conditions characterization of service. 18. An undated memorandum signed by the Adjutant General, New Jersey National Guard, states that after a thorough review of the applicant’s appeal petitioning an upgrade of his under honorable conditions characterization of service, it was denied. The memorandum further stated that in response to the applicant’s request for evidence concerning his reduction in rank, he was directed to block 18 (Remarks) of his NGB Form 22, which stated that he had been reduced from E7 to E1 due to altered documents presented at the time of his enlistment. 19. Orders P08-946950, U.S. Army Human Resources Command, dated 9 August 2012, announced the applicant’s placement on the Retired List in the rank of private, pay grade E-1, on 18 July 2011. REFERENCES: 1. AR 15-185 (ABCMR), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. National Guard Regulation 600-200 (Enlisted Personnel Management), chapter 8, and AR 135-178 (Separation of Enlisted Personnel), chapter 7, provide for the separation of enlisted personnel of the USAR and the ARNG for misconduct. Specific categories include the commission of a serious offense. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition (AR 40-501) is not the direct or substantial contributing cause of his or her misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only the separation authority listed in AR 135-178, paragraph 1-25, may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation. DISCUSSION: 1. The applicant contends that his military records should be corrected by showing he was honorably discharged from the NJARNG because he served 12 years in the RA and earned many awards and decorations including service in Vietnam. 2. In the absence of evidence to the contrary, it is presumed that the applicant’s discharge from the NJARNG in 2002 was conducted in accordance with law and regulations applicable at the time. The character of the discharge from the NJARNG is commensurate with that period of his service, based on the reasons for his discharge. The Adjutant General, New Jersey National Guard, reviewed his case and denied his appeal. There is no evidence of error in that decision. 3. The applicant requested a personal appearance before the Board; however, there is sufficient evidence available to fully consider this case, a formal hearing is not warranted. If the applicant is not satisfied with the results of the informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001172 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001172 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2