BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150009343 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: 19 April 2016 DOCKET NUMBER: AR20150009343 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 adding the following statements to his DD Form 214 ending on 7 August 1998: “Continuous Honorable Active Duty Service from 13 November 1993 to 2 March 1997.” “Immediate Reenlistment this Period: 3 March 1997 to 7 August 1998.” 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 changing his characterization of service for his period of active duty service ending on 7 August 1998 or granting him military service credit for the period August 1998 to January 2003. __________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 April 2016 DOCKET NUMBER: AR20150009343 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant’s DD Form 214 (Certificate of Release or discharge from Active Duty) ending on 7 August 1998, by showing his characterization of service as honorable and his narrative reason for separation as “miscellaneous”. Additionally, he requests active duty service credit from August 1998 to January 2003. 2. Counsel states, in an 8-page brief, his comments and arguments as summarized below: a. On 27 September 1993, the applicant enlisted in the United States Army Reserve, and enrolled in the Regular Army on 6 November 1993. His service continued without incident until 18 September 1995, when the applicant sought assistance from the Fort Ritchie, Maryland, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) because he had used cocaine. The applicant's commander enrolled him in the Track II outpatient program on 21 September 1995, due to a positive urinalysis for cocaine. On 6 November 1995, the applicant entered an inpatient alcohol treatment program followed by one-year of aftercare at the Fort Ritchie ADAPCP. His progress was described as good. On 13 March 1996, the applicant's commander again referred him to ADAPCP for suspected improper use of drugs and alcohol abuse. However, a drug test administered on that date was negative and a search of his room revealed no drugs. A small amount of alcohol was found that the applicant attested was there prior to his inpatient treatment. However, he was subsequently charged for failure to obey a lawful order by possessing hard liquor in the billets. These charges were later dropped. Despite these challenges, the applicant was awarded the Army Good Conduct Medal (AGCM) for the period 17 November 1993 to 16 November 1996. b. The applicant later admitted to consuming alcohol several times over the course of the prior 2 months. On 24 February 1997, he was reenrolled in Track II of the ADAPCP to further aid his recovery. He successfully completed the program on 16 October 1997. Since his release, the applicant had no alcohol or drug-related incidents, and the results of his subsequent urinalysis tests were all negative. c. On 2 March 1997, the applicant was honorably discharged due to completing his required term of service. He then reenlisted for 3 additional years of active service. On 9 October 1997, the applicant received a notice of intent to deny him sensitive compartmented information (SCI) access and revocation of his security clearance. The applicant provided a rebuttal that included supporting statements. The applicant's security clearance was allegedly revoked on 19 March 1998, despite strong supporting statements and evidence showing he had not consumed alcohol or other illicit substances. d. On 29 June 1998, the applicant was notified of separation proceedings in accordance with Army Regulation 635-200, chapter 13, for unsatisfactory performance. The basis for the separation was the alleged revocation of the applicant's security clearance. The applicant's discharge was subsequently approved on 30 July 1998. He was officially separated on 7 August 1998, with a general characterization of service. The narrative reason for separation was unsatisfactory performance. His separation program designator code was JHJ. During this term of service the applicant received, in addition to the AGCM mentioned above, the National Defense Service Medal, Army Service Ribbon, and an Overseas Service Ribbon. The awards were given to the applicant despite his personal struggles. e. On 17 December 2001, an Army recruiter requested a waiver of the applicant's re-entry (RE) code so he could reenter the military. On 31 January 2003, the request was approved. He reentered the Army on 28 May 2003 and he became an outstanding, irreplaceable Soldier. He completed Ranger training, received several personal decorations, additional AGCMs, and his performance evaluations show that he was an outstanding Soldier, self-motivated, loyal and recommended for promotion. f. Counsel argues that the U. S. Army committed a material error by relying upon the revocation of the applicant's security clearance as the basis for his separation that resulted in his wrongful discharge, because his security clearance was not revoked until after his separation action. On 29 June 1998, the applicant was notified that he was being separated because he was no longer qualified to work in his primary military occupational specialty (MOS) based on notification from the US Army Central Personnel Security Clearance Facility that his security clearance was revoked on 19 March 1998. g. However, according to the applicant's Joint Clearance and Access Verification System (JCAVS) personal summary, his security clearance was not revoked until 16 November 1998; this is 3 months and 8 days after his separation date. This means the factual basis for the applicant's separation, his lack of security clearance, and resultant unsatisfactory performance never existed. Therefore, the discharge was without merit and, accordingly, the accompanying characterization of service. The applicant's discharge was effectuated under false pretenses and was therefore wrongful. Accordingly, the applicant's characterization of service should be changed from general to honorable, and the narrative reason for separation from unsatisfactory performance to miscellaneous. h. This case exemplifies material injustice. During his first enlistment, the applicant was challenged by substance abuse difficulties, yet despite this he continued to serve admirably. The applicant enrolled in and successfully completed substance abuse programs and was lauded by his commanding officer and his therapist for his hard work and promising future. Despite these accomplishments, separation proceedings were taken against him. Despite this setback, the applicant excelled in his post-separation civilian life. The applicant attended college, married, became a father, and established a strong employment history. i. Perhaps most remarkable is the applicant sought reenlistment in the U. S. Army despite the erroneous discharge. He worked consistently from the time he was discharged in August 1998 until he reenlisted in the Army National Guard in January 2003 to accomplish his dream of continuing his career as a Soldier. He met with various Army recruiters between 1998 and 2002 in pursuit of rejoining the military. j. In addition to requesting that his discharge be changed to honorable, the applicant seeks to have his lost time in the Army counted towards his military retirement. The applicant was improperly and inequitably discharged from active service, but he continuously attempted to continue his Army career with a minimum amount of time lost. k. The applicant was initially rejected from reenlistment because of his RE code but he continued to meet with recruiters until an RE code waiver was granted. In light of this fact, the applicant respectfully requests that this Board correct his military records to reflect that the period from August 1998 to January 2003 applies towards his military service. l. The applicant is being unjustly prejudiced here because of his improper discharge from the Army, which continues to negatively impact his Army career and has caused him to lose 40 months of honorable military service. In this situation, the applicant has clearly demonstrated that he intended to continue with his Army career after August 1999; therefore, the legal principle of equity demands that the applicant is made whole by crediting him with the time in service that he lost. m. Additionally, once his reenlistment was accepted, the applicant worked hard to serve his country with distinction and honor. Despite this, the stain of the general discharge continues to mar his otherwise stellar military career, despite the 17 years that have passed. Therefore, given the material error of fact on which the discharge was based and the applicant's outstanding service and dedication to his country it is a material injustice to allow the general discharge to stand. 3. Counsel provides the following documentation: a. Exhibit 1: * DD Form 4 (Enlistment/Reenlistment Document), dated 27 September 1993 * DD Form 1966 (Record of Processing – Armed Forces of the United States, dated in 1993 * DA Form 3286-63 (Statement for Enlistment), dated in 1993 * DD Form 398-2 (National Agency Questionnaire), dated 27 September 1993 * Standard Form 88 (Report of Medical Examination), dated 17 September 1993 b. Exhibit 2: * Memorandum from the applicant, dated 30 October 1997, rebutting the loss of SCI access and revocation of his security clearance with enclosure * Memorandum for whom It may concern, dated 23 April 1998 * Separation action under provisions of AR 635-200, chapter 13 c. Exhibit 3: * Permanent Orders 339-2, Fort Richie, Maryland, dated 4 December 1996 * A DD Form 2648 (Pre-Separation Counseling Checklist), dated 12 May 1998 * Orders 211-0001, Fort Richie, Maryland, dated 30 July 1998 d. Exhibit 4: * Memorandum for RE Code Waiver Authority, dated 17 December 2001 * Memorandum for Commander, subject: Determination of Eligibility, dated 31 January 2003 * DD Form 4, dated 28 May 2003 e. Exhibit 5: * Certificate of Graduation, 75th Ranger Regiment, dated 9 April 2004 * Army Achievement Medal Certificate, dated 14 December 2004 * Permanent Order Number 170-5083, Fort Benning, Georgia, dated 19 June 2006 * Orders 109-5014, Fort Benning, Georgia, dated 19 April 2007 * Permanent Order 260-5008, Fort Benning, Georgia, dated 17 September 2007 * Certificate of Training, dated 5 June 2008 * Diploma, Basic Noncommissioned Officer Course, dated 25 June 2008 * DA Forms 2166-8 for periods ending October 2008, October 2009, October 2010, October 2011 * Orders 083-0857, Fort Knox, Kentucky, dated 24 March 2011 * Army Commendation Medal Certificates, dated 3 November 2008, * 20 December 2011, and 28 March 2014 * A certificate for Applied Suicide Intervention Skills Training, dated * 2 and 3 March 2012 * DA Forms 2166 for the periods ending October 2012 and October 2013 * DA Form 638 (Recommendation for Award), dated 21 February 2014 (page 1 only) f. Exhibit 6: A JGAVS Person Summary acquired on the Internet, dated 14 March 2008. 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 16 November 1993, the applicant enlisted in the Regular Army for a period of 4 years. His enlistment option was for training in MOS 31F (Mobile Subscriber Equipment (MSE) Network Switching Systems Operator). 3. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: a. 16 June 1995, for violation of Article 86, due to unauthorized absence (specifics not available); and b. 23 February 1996, for violation of Article 112a, due to wrongful use, possession, etc., of a controlled substance (specifics not available). 4. On 1 September 1996, the applicant was advanced to specialist four, pay grade E-4. 5. On 2 March 1997, the applicant was discharged with an honorable characterization of service for the purpose of immediate reenlistment on 3 March 1997. 6. In a memorandum for the applicant’s commander, dated 29 October 1997, the Clinical Director, ADAPCP, requested on behalf of the applicant that the applicant’s SCI access eligibility and security clearance not be revoked. The applicant had been enrolled in ADAPCP twice, the first time as a self-referral and later as a result of command action. It was the director’s belief that the applicant had maintained sobriety and was dedicated to continuing his recovery program. He admittedly had a relapse, but such was not unusual for recovering alcoholics. What was important was the applicant taking the necessary actions to deal with his illness. The director believed the applicant’s disease would not impair his judgment or reliability as long as he maintained his commitment to sobriety. 7. In a memorandum through his chain of command to the Commander, U.S. Army Central Personnel Security Clearance Facility, the applicant wrote a rebuttal in response to the commander’s intent to deny him SCI access eligibility and revocation of his clearance. The applicant stated that on 5 December 1996, the date in question, he reported to his duty section at the prescribed time and was not intoxicated, impaired, nor smelled of alcohol. He was never formally counseled by his supervisor or commander in reference to the alleged incident. The applicant explained that an almost empty liquor bottle (less than 1 ounce) in an old shoe box in his barracks room that he had forgotten about resulted in him being command referred to the ADAPCP. He stated that he had successfully completed the 12-month ADAPCP Track III in/out patient program and an 8-month Track II program. He had abstained from alcohol. He was negative in all urinalysis tests given by ADAPCP and his unit. His intent was to continue his military career and to maintain sobriety. 8. In a statement, dated 31 October 1997, the Director, Personnel, Training and Operations, a chaplain, lieutenant colonel, verified that on 6 December 1996, he never detected alcohol on the applicant’s breath. He never had to send him home because of improper behavior while at work. The applicant had performed with the utmost professionalism. He had personal problems that he struggled with, but he had resolved the majority of them. The chaplain was convinced the applicant was loyal, committed, trustworthy, and salvable. 9. A DA Form 2A (Personnel Qualification Record) prepared on 31 March 1998, shows the applicant was assigned in MOS 31F. It also showed a code “M” on line 37, indicating his access to classified data was suspended. 10. In a memorandum, dated 23 April 1998, the post chaplain wrote that the applicant had worked for the unit ministry team since October 1997. His performance had been outstanding. He had been entrusted with accounting for and depositing chapel offerings, a job of great responsibility. The applicant had remained later and worked overtime helping the chapel staff to complete their mission. The chaplain felt the applicant had been a definite multiplier to the installation unit ministry team during a stressful time of post closure. 11. On 27 April 1998, the Chief, Personnel Service Center, informed the applicant’s battalion commander that the applicant had lost his security clearance and in accordance with AR 635-200, paragraph 2-31c(5), a separation packet had to be processed. In the alternative, if the chain of command disapproved a separation, then a request for reclassification had to be forwarded to the Personnel Service Center. 12. On or about 29 June 1998, the applicant’s commander initiated a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. The commander stated the reason for this proposed action was the applicant’s revocation of SCI access eligibility and security clearance. The applicant was advised he was being recommended for a general characterization of service. The applicant acknowledged receipt of this action on 29 June 1998. 13. The applicant consulted with counsel and elected to make a statement in his own behalf. He also requested consulting counsel. A trial defense counsel stated that he had advised the applicant of the basis for the contemplated separation, its effects, and of the rights available to him. 14. On 16 July 1998, the applicant wrote a rebuttal memorandum through his chain of command to the brigade commander, wherein he requested correction of pertinent information. He referred to a memorandum, subject: Report of Credible Derogatory Information, dated 11 July 1997. He indicated that he had refuted all allegations and enclosed supporting documents. 15. On 16 July 1998, the applicant’s company commander recommended that the applicant be separated because he was no longer qualified to work in his primary MOS. This action was based on a notification from the U.S. Army Central Personnel Security Clearance Facility that his security clearance was revoked on 19 March 1998, due to prior misconduct. The commander indicated enclosures were attached that are no longer available. The recommendation also states the applicant accepted the following non-judicial punishment (NJP) on 16 June 1995, for unauthorized absence and on 23 February 1996, for wrongful use, possession, etc., of a controlled substance. 16. A legal advisor in the Office of the Command Judge Advocate reviewed the applicant’s separation packet and determined it was legally sufficient. 17. On 20 July 1998, the appropriate authority approved the recommendation for discharge and directed that he be given a general discharge. 18. His DD Form 214 shows he entered active duty on 16 November 1993 and completed 4 years, 8 months, and 22 days of creditable active service. He was discharged under honorable conditions on 7 August 1998. However, the remarks block does not list his first period of service ending with immediate reenlistment. The DD Form 214 also states that all of his service was continuous honorable active service. 19. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 20. A JCAVS Person Summary, as provided by the applicant’s counsel, states “PSI Adjudication of OTHR Unknown, Opened, Closed 1997 04 30, determined Eligibility of SCI Revoked – Ineligible for eligibility on 1998 11 16 Army CCF.” REFERENCES: 1. Army Regulation 635-5 (Separation Documents) as revised shortly after the applicant’s discharge, provided detailed instructions for completing separation documents, including the DD Form 214.  It provided that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provided a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service. It required the following mandatory entry for Soldiers with more than one enlistment and their last enlistment was characterized as anything other than honorable: "Continuous Honorable Active Service From (first day of service for which DD Form 214 was not issued until (date before commencement of current enlistment).” Then, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify inclusive dates for each period of reenlistment. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 3. Army Regulation 635-200, 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. 4. Army Regulation 635-200, paragraph 3-7b, provides that 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 the Soldier’s separation specifically allows such characterization. DISCUSSION: 1. Counsel contends that the applicant’s DD Form 214 ending on 7 August 1998 should be corrected by showing his characterization of service as honorable and his narrative reason for separation as “miscellaneous” because his security clearance was not revoked on 19 March 1998 as alleged in his separation packet; it was revoked on 16 November 1998, after he had already been discharged. 2. Counsel further contends the applicant’s records should be corrected to show he received service credit for the period between his less than honorable discharge and his subsequent reenlistment. 3. The available evidence shows the applicant enlisted on 16 November 1993 and he was discharged on 2 March 1997 for the purpose of immediate reenlistment. Thus, this period of service should have been shown in the remarks section of his DD Form 214 as honorable. He reenlisted on 3 March 1997. His MOS was 31F (MSE Network Switching) which required an SCI. 4. The available evidence shows the applicant was assigned to the post chaplain’s office in October 1997 and was still performing such duty in April 1998. The applicant’s DA Form 2A, dated 31 March 1998, shows the applicant’s access to classified data was suspended. 5. On 27 April 1998, the Chief, Personnel Service Center, informed the applicant’s battalion commander that the applicant had lost his security clearance and in accordance with AR 635-200, paragraph 2-31c(5) a separation packet was required. In the alternative, if the chain of command disapproved, then a request for reclassification had to be forwarded to the Personnel Service Center. 6. The applicant’s administrative separation 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 reasons therefore were appropriate considering all of the facts of the case. 7. The governing regulation provides that 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. This is usually a subjective determination made by the Soldier’s commander at the time. The available evidence in this case is insufficient to warrant overturning the commander’s decision. 8. It is noted that a personal summary shows the actual date his security clearance was revoked was 16 November 1998. However, the applicant had lost access as early as March 1998. Therefore, the length of time to complete the actual revocation is of no consequence because there was no intention to restore his access. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009343 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009343 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2