IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150012275 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 IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150012275 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 to item 18 of his DD Form 214 the entry "Continuous honorable service 19810325-19940515." 2. The Board further determined that the evidence presented was 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 upgrading his character of service. _____________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: 12 July 2016 DOCKET NUMBER: AR20150012275 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 under other than honorable conditions discharge. 2. The applicant states he believes the long term effects of his punishment go beyond the infraction that he takes sole responsibility for. He believes his career and duty have shown his dedication to the country, Army, and his family. His poor decision was nothing short of embracement to him, his family, and the Army. He has since made every effort to rebuild and become an influential role model for others in his community and his home by making better choices. The ramifications of his punishment continue to arise far beyond his true identity and his moral beliefs that he tries to live by and uphold. 3. The applicant provides a self-authored statement, his college diplomas, and multiple statements of support from a pastor and friends. 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 Regular Army on 25 March 1981. He held military occupational specialties 95B (Military Police) and 95C (Corrections Specialist). 3. He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments, including Korea and Germany, and he attained the rank/grade of staff sergeant (SSG)/E-6. 4. On 25 January 1995, the Leavenworth police stopped him for speeding. After the police smelled alcohol on his breath, he underwent a field sobriety test, which he failed. The test indicated his blood alcohol content was .233 percent. 5. On 21 February 1995, the Commanding General (CG), Fort Leavenworth, KS, reprimanded him for misconduct and blatant disregard for his safety and the safety of others. The CG ordered the General Officer Memorandum of Reprimand permanently filed in his record. 6. On 10 January 1995, he participated in a unit urinalysis and his urine sample tested positive for cocaine. 7. On 30 January 1995, he was investigated by the U.S. Army Criminal Investigation Command (CID). He was interviewed and admitted to the use of crack cocaine. 8. On 2 February 1995, court-martial charges were preferred against the applicant for one specification of wrongfully using cocaine. 9. It appears the applicant consulted with legal counsel and requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. However, on 21 February 1995, the CG, Fort Leavenworth disapproved his request for discharge in lieu of trial by court-martial. 10. On 27 March 1995, court-martial charges were preferred against the applicant for one specification of wrongfully using cocaine. 11. On 31 March 1995, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge the applicant indicated: a. he was making this request of his own free will and had not been subjected to any coercion by any person; b. he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge; c. he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans administration(VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law; d. he stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service"; and e. he did not elect to submit a statement in his own behalf. 12. On 31 March 1995, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. The applicant was accordingly discharged on 5 April 1995. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge. This form further confirms he completed a total of 14 years and 11 days of creditable active military service. Additionally: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the: * Army Commendation Medal * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (4th Award) * National Defense Service Medal * NCO Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Driver and Mechanic Badge with Driver W-Bar * Item 18 (Remarks) shows, in part, the entry "Reenlistments this period 19810325-19831031, 19831101-19881122, and 19881123-19940515" 14. 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. 15. He provides: a. A self-authored statement in which he states he is requesting an upgrade in discharge for several reasons. He has made great strides to become a productive individual within his community, and he has continued to strive for higher excellence through education advancements. He has been very active in his church, community, and family life. This discharge has brought many obstacles, and does not reflect the entire service that he committed himself to with great excellence, but yet a small, though crucial area. He believes that an upgrade will enable him to better serve as a positive example to his family, community, and this country. He has also held employment for over 8 years with his last employer with high remarks, and held his previous employment for over four years. He also attended two higher learner schools since leaving the military: The Nation Institute of Technology, where he graduated in January 1998 as a Computer Technology Engineer, and the University of Phoenix, where he graduated with a Bachelor's of Science degree as a Software Engineer (he provides his diploma). He has also held the position of finance committee member, head of Deacon Board, church trustee, as well as choir president and musician. The poor decision he made after his mother's funeral had an adverse effect and dishonored his family, unit, and country. He takes neither his life nor those around him lightly, and makes every effort to be a positive role model for others. b. A statement of support from a pastor who has known the applicant for 6 years and as a member of St John Baptist Church. He can confirm that he is a man of great integrity, and is extremely dedicated to his family and work. He has been a great asset to the congregation; he was active with the youth department, men's ministry, and drummer in the choir. He has always shown concern and love for his community, he has assisted with food drives for Thanksgiving, Angel Tree for the children's Christmas, and helping older people in the area. Utilizing his computer education, he has assisted St. John with setting up a state of the art computer system where the finance committee can access files from home if needed, troubleshooting the church computer via logmein.com. This has resulted in very little down time of the computer system at St. John, his dedication and reliability have been invaluable. He was also ordained as a Deacon at St. John Baptist Church. c. A statement from an individual who states she has known the applicant for over thirty years. He is one of her brothers and best friend. They have been classmates and friends for many years. During the time she knew him, he has always been trustworthy, reliable, and a loyal devoted friend. He has always referred to her as his little sister, being her parents only trusted her with him and her brother. As he grew up, he evolved into a hardworking, diligent, and industrious man. He now has a family with children; they are a loving close group. They have also adopted two beautiful children. He is generous, giving, and helpful toward people. He is a church-going man and has ordered his steps in God's will. Upon the death of his sister he has become her daughter's rock and has been assisting them through that time of grief. He has received his education in computer science and at one time had his own computer business showing he is determined and a goal-oriented person. He has many times donated his time and computer skills to individuals with mid to low incomes, mostly single parents. His character is impeccable. d. A statement of support from an individual who states the applicant is one of the most sincere and dedicated men he knows. His "don't quit" attitude to get the job done is seldom matched; a true man of God and family. He is with great honor and pleasure to call him a brother and mean it. They have known each other for 40 years, from the playground, to the band-room, to the foxholes. He could not have a better person have his back: a true blessing in life personally. They have eaten bread together, laughed together, and cried together. He is the kind of man that another man can talk to and he listens willingly. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a,states 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. c. Paragraph 3-7b, states 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. 2. AR 635-5 (Separation Documents) prescribed the separation documents which were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. The Remarks block is used for entries required by Department of the Army for which a separate item is not available on the form and for completing entries that are too long for their blocks. a. The version of the regulation (1 July 1981) in effect prior to his discharge required an entry in item 18 (Remarks) to show a list of enlistment periods for which a DD Form 214 was not issued. For example: Immediate reenlistments this period: 761210-791001; 791002-821001. b. The version of the regulation (2 October 1989) in effect at the time of his discharge stated that the first entry in block 18 lists reenlistment periods for which a DD Form 214 was not issued, if applicable, e.g., "Immediate reenlistments this period: 761218-791001; 791002-821001." However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," the following statement will appear as the first entry in block 18, "Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued, e.g., 761218) Until (date before commencement of current enlistment, e.g., 821001); then enter the specific periods of reenlistments as prescribed above. DISCUSSION: 1. The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 3. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. His service does not rise to the level required for a general or an honorable discharge. 4. The governing regulation in effect at the time of his discharge required a mandatory entry regarding reenlistments. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," a statement will appear as "Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued) until (date before commencement of current enlistment) as well as the specific periods of reenlistments as prescribed above. In his case, his DD Form 214 does not show his continuous honorable service from 25 March 1981 through 15 May 1994 in item 18. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012275 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012275 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2