BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150008541 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: 19 May 2016 DOCKET NUMBER: AR20150008541 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: 19 May 2016 DOCKET NUMBER: AR20150008541 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 to an honorable discharge. 2. The applicant states, in effect: a. He was born in Cameroon, Africa, but he is a U.S. citizen. He moved to the U.S. and joined the Army in 2007 to fight against evil. In December 2009, he was discharged from the Army with claims that his behavior was bad. At the time, he had many issues going on. He had mental health problems and he was struggling with a separation from his wife. He was finally divorced in 2010. b. He was subjected to racial abuse from his colleagues and many people laughed at his accent, taunting him constantly. He was subjected to physical abuse by his then sergeant (SGT) and he called the inspector general (IG) more than once to resolve his issues. Coupled with that, he had mental health issues and was on medication for depression. The physical injuries he incurred from his service still affect him. c. He really suffered emotionally and it changed him. Instead of receiving help, he was bullied and insulted. When he was undergoing the discharge action, Colonel (COL) JJS, the mental health physician, asked his commander, Captain (CPT) DWB, to medically discharge him, but he was denied for no reason. He had been seeing a mental health professional at Fort Drum, NY. He still suffers from mental health issues and was granted a disability rating by the Department of Veterans Affairs (VA). He now has a counselor and is on medication. To make things right, he believes his discharge should be upgraded to honorable and his medical records prove this point. He should not be suffering when he joined the service with the intention of serving his country. 3. The applicant provides: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 December 2009 * one page of a VA Rating Decision * a letter from the Army Discharge Review Board (ADRB), dated 24 November 2010 * ADRB Case Report and Directive with attachments, dated 22 November 2010 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. The applicant enlisted in the U.S. Army Reserve (USAR) on 7 August 2007. He was assigned to the 979th Engineer Company, Richmond, KY. He entered active duty as a member of the USAR on 23 August 2007. He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist). On 28 April 2008, he was honorably released from active duty to the control of his USAR unit. 3. The DD Form 214 he was issued for this period of service shows he completed 8 months and 6 days of net active service and 16 days of prior inactive service. On an unknown date, he was discharged from the USAR. 4. On 10 July 2008, he enlisted in the Regular Army (RA) in the rank/grade of private (PV2)/E-2, MOS 92Y, for a cash bonus. On 15 July 2008, he was assigned to the 1st Battalion, 87th Infantry Regiment, Fort Drum, NY. On 4 November 2008, he was promoted to the rank/grade of private first class (PFC)/E-3. 5. On 11 June 2009, the applicant failed to report for duty at the prescribed time. At 0225 hours that morning, he had been arrested in the town of LeRay, NY, by the Jefferson County Sheriff's Department and charged with driving while intoxicated (DWI) and excessive speeding. He refused to take a breathalyzer, his driver's license was temporarily suspended, and he was turned over to the Fort Drum Military Police (MP). His on-post driving privileges were suspended by the MP. 6. He was released that day to the custody of his first sergeant (1SG) and attempted to report for duty with the claim that he was not intoxicated. He subsequently admitted to the 1SG that he had been drinking beer at home and then went to a bar and drank more beer. Upon returning to the company area, his commander ordered him to undergo chemical testing. The test results were found to be over the legal limit and he was found to be drunk on duty and was subsequently found to be asleep on duty. 7. On 13 June 2009, he failed to report for duty at the prescribed time. He was picked up by his command in uniform smelling of alcohol. He was taken to the MP station, given a chemical test, and was found to be over the limit with a .074 blood alcohol content. 8. On 15 June 2009, he was administratively reduced to private (PVT)/E-1 for not upholding the status of his current grade. 9. On 17 June 2009, it was reported to his unit that he had been seen driving on post while his driving privileges were suspended. 10. On 17 June 2009, he was counseled by his immediate supervisor for missing movement, failing to obey a regulation, dereliction of duty, noncompliance with procedural rules, and DWI. He was advised that if this type of behavior continued separation action would be initiated against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 13 for unsatisfactory performance, or chapter 14 for misconduct. 11. On 23 June 2009, he was enrolled in the Army Substance Abuse Program (ASAP). 12. On 25 June 2009, he was counseled by his immediate supervisor for insubordinate conduct toward a noncommissioned officer (NCO), failure to obey a lawful order from a commissioned officer, and dereliction of duty for failing to report for duty at the prescribed time. 13. On 26 October 2009, his ASAP counselor contacted his 1SG and reported the applicant had stated to COL JJS that he had been drinking the previous weekend. 14. On 9 November 2009, he was counseled by his 1SG for several incidents of reported alcohol use. His ASAP counselor reported that on one occasion he had smelled of alcohol and he stated he had been drinking the previous night, and on 26 October 2009 he told COL JJS that he had slipped up the previous weekend. Since his enrollment, he (the 1SG) had told him that if he wanted to remain in the Army he had to follow ASAP (policy) and not drink. He was advised that his continued disregard for Army policy left them with no choice but to initiate separation against him under the provisions of Army Regulation 635-200, chapter 9 for rehabilitation failure, or chapter 13 for unsatisfactory performance, or chapter 14 for misconduct. 15. On 18 November 2009, he was notified by his immediate commander of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - a pattern of misconduct. The commander stated the reasons were that on 11 June 2009 he was driving while intoxicated in Watertown NY, on 13 June 2009 he failed to report to duty due to prior wrongful indulgence, on 17 June 2009 he was driving on post while his driving privileges were suspended, and he had also disobeyed commissioned officers and NCOs on numerous occasions. The commander stated he was recommending the applicant receive a general discharge. On 18 November 2009, he acknowledged receipt of the commander's notification. 16. On 10 December 2009, he underwent a mental status evaluation at the request of his commander for separation action being initiated against him under the provisions of Army Regulation 635-200, chapter 14 for misconduct. His DA Form 3822-R (Report of Mental Status Evaluation) shows: a. The examining physician, COL JJS, noted the applicant's behavior was normal, he was fully alert and oriented, his mood was anxious and unremarkable, his thinking process was clear, and his thought content was normal. COL JJS found the applicant had the mental capacity to understand and participate in the proceedings, he was mentally responsible, met retention standards, and he was psychiatrically cleared for separation. b. He was diagnosed with alcohol dependency. COL JJS found the applicant continued to suffer from alcohol dependency and had been recommended for a chapter 9 separation. His poor performance, behaviors, and personality problems were directly related to his difficulties with alcoholism and a long ingrained coping pattern; they were not amenable to rehabilitation while serving on active duty. A chapter 9 separation would afford him further services through the VA for his alcohol problem. 17. On 15 December 2009, he consulted with legal counsel and he was advised of the basis for the contemplated separation action under the provisions of Army Regulation, paragraph 14-12b - a pattern of misconduct, the type of discharge he could receive, its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him. He declined to submit a statement on his own behalf. 18. On 16 December 2009, his senior commander recommended approval of the separation action and with his service characterized as general, under honorable conditions. 19. On 21 December 2009, the separation authority approved the separation action and directed his service be characterized as general, under honorable conditions. On 30 December 2009, he was discharged accordingly. 20. The DD Form 214 he was issued for this period of service shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct, with an under honorable conditions (general) characterization of service. Item 12a (Date Entered Active Duty This Period) contains the entry "2007--08--23." 21. His Enlisted Record Brief (ERB), dated 28 October 2009, shows his PULHES ratings at the time were 1-1-1-1-1-1. 22. There is no evidence in his available record that shows he sought assistance from his chain of command or IG for issues/problems with racial or physical abuse from his fellow Soldiers. 23. The applicant provides one page of a VA Rating Decision, dated 6 April 2010, wherein it shows he was granted service-connected disability effective 31 December 2009 for: * anxiety disorder (also claimed as depression, forgetfulness, anger, loss of appetite, and chest pain) - rated at 30 percent (%) * lumbosacral spondylolysis - rated at 10% * degenerative arthritis - rated at 10% 24. On 22 November 2010, the ADRB denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel: a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. b. Chapter 9 establishes policy and prescribes procedures for separation members for rehabilitation failure. A member who had been referred to the Army's ASAP for alcohol/drug abuse could be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program. The individual could be issued an honorable or general, under honorable conditions discharge depending on his service record. c. 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. DISCUSSION: 1. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his arrest for DWI, driving while his on-post driving privileges were suspended, failing to report on several occasions, and disobeying lawful orders. Accordingly, his immediate commander initiated separation action against him under the provisions of AR 635-200, paragraph 14-12b for a pattern of misconduct. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 3. His record is void of evidence showing that he sought assistance for issues/problems with racial or physical abuse by his fellow Soldiers. The evidence of record does show after his arrest for DWI his command enrolled him in ASAP to ensure he was provided the assistance and help he needed to fight his alcohol dependency and become a quality Soldier. However, he continued to abuse alcohol, was determined to be a rehabilitation failure, and continued to engage in acts of misconduct. 4. Based on his overall record, his service did not meet the standards of acceptable conduct for Army personnel that would meet the criteria for an honorable discharge. 5. It is noted that item 12a of the DD Form 214 he was issued for the period ending 30 December 2009 incorrectly shows the date he entered active duty this period as 23 August 2007 vice 10 July 2008. It appears an error occurred when this DD Form 214 was prepared and the date he had entered active duty while in the USAR was erroneously entered in item 12a. It is the general policy of the Board not to cause an applicant to be worse off for having applied for a correction to their record; therefore, no action will be taken to correct this error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008541 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008541 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2