ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 October 2020 DOCKET NUMBER: AR20200001720 APPLICANT REQUESTS: his rank be restored to Sergeant (SGT)/ E-5 at the time of discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter from Veterans Services * Enlisted Record Brief (ERB) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was already reduced from Staff Sergeant (SSG) to SGT. There was no just reason to reduce him to Private. 3. The applicant's service records contain the following documents for the Board's consideration: a. Orders 058-008, published by Headquarters, Combat Aviation Battalion, 4th Infantry Division, dated 27 February 2014, which promote the applicant to SSG effective 1 March 2014. b. A memorandum from Headquarters Support Company, 404th Aviation Support Battalion, dated 16 December 2014, notifying the applicant of separation proceedings under Army Regulation 635-200, Chapter 14-12c(2) for use of illegal drugs between on or about 31 August 2014 and on or about 2 September 2014 for the use of cocaine. He was being recommended for an under other than honorable conditions discharge. c. The applicant acknowledged receipt of the recommendation for separation on 16 December 2014. d. The applicant submitted a conditional waiver stating he would waive his right to an administrative separation board on the condition he receive a discharge no less than General, Under Honorable Conditions on 16 December 2014. e. A memorandum from Headquarters Support Company, 404th Aviation Support Battalion, dated 14 December 2014, which shows: * the applicant was being recommended for separation from the Army prior to his expiration term of service * he had received nonjudicial punishment on 14 October 2014 for use of drugs and was reduced to SGT f. A memorandum from Headquarter, 404th Aviation Support Battalion, Combat Aviation Brigade, dated 19 December 2014, which is a recommendation the applicant be separated from the Army with an other than honorable conditions discharge certificate. g. A legal review of the separation packet, dated 6 January 2015, which states the separation was legally sufficient. h. A memorandum from Headquarters, Combat Aviation Brigade, 4th Infantry Division, dated 14 January 2015, which recommends the applicant be separated from the Army with an other than honorable discharge certificate. i. A memorandum from Headquarters, 4th Infantry Division and Fort Carson, dated 14 April 2015, which denies the applicant's conditional waiver for a general, under honorable conditions discharge. j. A memorandum from Headquarters, 4th Infantry Division and Fort Carson, dated 11 September 2015, which states: * an administrative separation board was held on 28 May 2015 for the applicant * the board recommended the applicant be separated from the service * they recommended he receive an other than honorable conditions discharge * in accordance with Army Regulation 600-8-19, the applicant would immediately be reduced to the lowest enlisted grade of Private k. Orders 266-0032, published by Installation Management Command, Headquarters United States Army Garrison, Fort Carson, dated 23 September 2015, which discharge the applicant in the rank of Private effective 30 September 2015. l. A DD Form 214, prepared on 18 July 2019, which shows the applicant was discharged from the Army in the rank of Private effective 30 September 2015. His character of service was Honorable and was for misconduct (minor infractions). This DD Form 214 was prepared to void out his previous DD Form 214, which showed his character of service as Under Other than Honorable Conditions and reason for separation was misconduct (drug abuse). m. A memorandum from the Army Review Discharge Board, which states they granted relief to the applicant's request of upgrading his discharge to honorable. 4. The applicant provides the following documents for the Board's consideration: a. A letter from Veterans Service County of Hidalgo, dated 19 November 2019, which forwards the applicant's DD Form 149 and supporting documents to the Board. b. An ERB, dated 19 May 2015, which shows the applicant was promoted to SSG on 1 March 2014. c. The DD Form 214 prepared on 18 July 2019, which was present in his service record. 5. Please see applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the reduction of the applicant being a result of an operation of law (as a result of his original characterization of service being Under Other Than Honorable Conditions) and the characterization later being mitigated and changed to Under Honorable Conditions (General), the Board concluded there was sufficient evidence to grant the applicant抯 request by restoring his rank to SGT/E5 on his DD Form 214. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending the applicant抯 DD Form 214 to reflect: * (Item 4a) Grade, Rate or Rank: SGT * (Item 4b) Pay Grade: E05 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. REFERENCE: 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. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. It states: a. In paragraph 1-13 when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per AR 600𤾃9, chapter 10. b. In paragraph 3-7a, an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier抯 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. b. In paragraph 3-7b, 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to AD. c. In paragraph 3-7c, a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in the following circumstances: (1) When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. d. In paragraph 14-12c(2) Soldiers are subject to for separation for a 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. Use of illegal drugs is a serious offense. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), states when the separation authority determines a Soldier is to be discharged from the Service under other than honorable conditions, he or she will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions or when directed by higher authority, direct the Soldier to be reduced to PV1. ///NOTHING FOLLOWS/// ABCMR Record of Proceedings (cont) AR20190009682 4