IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150009296 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 IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150009296 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. IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150009296 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 honorable and amendment of his narrative reason for separation. 2. The applicant states: a. When he was discharged from the Army in 1997 after consideration by a separation board he was given a general discharge and his narrative reason for separation was listed as misconduct. b. He had no negative outcome from the discharge board. c. After all these years he is not able to apply for work with State or Federal agencies due to a negative background check now appearing on his records which never existed until last year. d. Since his discharge from the Army in 1997, he has completed enlistments in the Army National Guard (he was honorably discharged in 2004), he was employed by the Federal government for work in Iraq and Afghanistan as a GS-12 (from 2004 to 2007), and he has security clearances for all work. He has been issued weapons permits and he has purchased hundreds of handguns and rifles through his gun shop. e. He is now unable to apply for any State or Federal employment or purchase firearms due to his negative criminal background. f. Somehow his records were updated or changed incorrectly because he now has a criminal background which was clean until last year when he was denied employment by the Department of Corrections. 3. The applicant provides: * concealed weapon or firearm license * Department of Veterans Affairs card * Florida driver's license * Application for tax paid transfer and registration of firearm * DA Form 2446 (Request for Orders) * National Guard Bureau Form 22 (Report of Separation and Record of Service * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Honorable Discharge Certificate * memoranda, dated 4 March 2006 and 22 December 2006 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. Having prior active service in the U.S. Navy, the applicant enlisted in the Regular Army on 18 November 1993 for a period of 3 years. He completed his training and was awarded military occupational specialty 96R (ground surveillance systems operator). 3. Between June 1995 and November 1996 he was counseled for: * failing to follow a direct order * making a false sensitive items report * threatening a noncommissioned officer (NCO) * lying to a NCO * conducting an unsafe act toward Soldiers * conduct unbecoming of an NCO * missing formation * being disrespect towards a NCO * failing to follow a direct order * communicating a threat towards a NCO * failing to take responsibility * indebtedness * failing to meet financial obligations * missing an appointment with his platoon leader * missing a financial appointment * failing to repair 4. He received a company-level letter of reprimand on 7 August 1995 for being disrespectful. 5. He was promoted to sergeant effective 1 October 1995. 6. On 31 January 1996, nonjudicial punishment was imposed against him for failing to obey lawful orders (failing to draw his bayonet from the armor and take it to the maneuver site, failing to maintain positive control over sensitive items, failing to provide an accurate sensitive items inventory to the chain of command, and wrongfully reporting false inventory reports). 7. A bar to reenlistment was imposed against him on 6 September 1996. 8. Records show an investigation was initiated by the U.S. Army Criminal Investigation Command (commonly known as CID) in September 1996 for allegations against the applicant of making a false official claim and statement of larceny of government funds. The investigation concluded the applicant had submitted a false basic allowance for quarters recertification indicating he was still married and had received entitlements in the amount of $2,886.00 to which he was not entitled. 9. Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reduced to pay grade E-4 effective 15 October 1996. 10. On 17 December 1996, discharge proceedings were initiated against him for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b. His unit commander cited his failing to obey orders, being disrespectful toward NCOs, failing to report, and making false official statements as reasons for the proposed action. 11. On 2 January 1997, he consulted with counsel and requested a personal appearance and consideration of his case by a board of officers. He acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge. He elected not to submit a statement in his own behalf. 12. The administrative separation board convened on 3 March 1997. The board found the allegations that the applicant was disrespectful toward NCOs, that he failed to obey orders, that he failed to go to his place of duty, and that he did make false official statements, were supported by the preponderance of the evidence. The board recommended his discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct. 13. On 3 April 1997, the separation authority approved the findings and recommendations for discharge and directed the issuance of a general discharge. 14. On 8 April 1997, he was discharged under honorable conditions (general) for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b (patterns of misconduct). He completed 3 years, 4 months, and 21 days of creditable active service in the Army and 9 years, 5 months, and 20 days of total active service. 15. His DD Form 214 shows in: * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 14-12b * item 26 (Separation Code) – JKA * item 28 (Narrative Reason for Separation) – Misconduct 16. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 17. He served in the Army National Guard from 18 March 2002 to 1 October 2004. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. a. Chapter 3 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. b. Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, pattern of misconduct, and commission of a serious offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 2. Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons. The reason for discharge based on SPD code JKA is misconduct and the regulatory authority is Army Regulation 635-200, paragraph 14-12b. 3. Army Regulation 195-2 (Criminal Investigation Activities) prescribes Department of the Army policy on criminal investigation activities and constitutes the basic authority for the conduct of investigations and the collection, retention, and dissemination of criminal information. It states that requests to amend CID reports of investigation will be granted only if the requestor submits new, relevant, and material facts that would warrant such a revision. The burden of proof to substantiate the request is placed upon the individual. Requests to delete a person's name from the title block will be granted only if it is determined that probable cause did not exist to believe that the person so titled committed the offense. The regulation further states the decision to title a person for an offense is an investigative determination independent of any judicial, nonjudicial, or administrative action taken against the individual or the results of such action. 4. Army Regulation 195-2, paragraph 4-3d(1), further states the disclosure of criminal information originated or maintained by CID may be made to any Federal, State, local, or foreign law enforcement agency that has an investigative or law enforcement interest in the matter disclosed, provided the disclosure is not in contravention of any law, regulation, or directive as applied to law enforcement activities. Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act. 5. Department of Defense Instruction 5505.7, subject: Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, dated 7 January 2003, states titling ensures investigators can retrieve information in a report of investigation of suspected criminal activity at some future time for law enforcement and security purposes. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling simply states, if there is reason to investigate, the subject of the investigation should be titled. This is a very low standard of proof (mere scintilla of evidence), far below the burdens of proof normally borne by the government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of the evidence), and in searches (probable cause). DISCUSSION: 1. The applicant's administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 2. His record of service included numerous adverse counseling statements, a bar to reenlistment, and two nonjudicial punishments. As a result, his record of service was not so meritorious as to warrant an honorable discharge. 3. Although a discharge under other than honorable conditions is normally considered appropriate for the authority and reason for his discharge, he was given a general discharge under honorable conditions. An honorable discharge was not authorized under the provisions of Army Regulation 635-200, chapter 14. 4. His narrative reason for separation is correct and was applied in accordance with regulatory guidance. 5. His contentions pertaining to a negative background check were noted. However, in accordance with pertinent regulations, the decision by CID to title a person for an offense is an investigative determination independent of any judicial, nonjudicial, or administrative action taken against the individual, or the results of such action. If reason existed at the time of the investigation of an alleged offense to believe that a particular person committed the alleged offense, CID is justified in titling that individual. 6. Disclosure of criminal information originated or maintained by CID may be made to any Federal law enforcement agency that has an investigative or law enforcement interest in the matter disclosed. Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009296 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2