IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150013029 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: 18 October 2016 DOCKET NUMBER: AR20150013029 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: 18 October 2016 DOCKET NUMBER: AR20150013029 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 his discharge under other than honorable conditions be upgraded to an honorable discharge or a general discharge under honorable conditions. 2. The applicant states he believes his current discharge under other than honorable conditions is inequitable and too harsh given his quality years of honorable military service and actions performed during his service. He earned the right to call himself a Special Forces Soldier and wear the Green Beret both in the schoolhouse and on the battlefields of East Asia. He has proven his excellence in his trade, dedication to his country, ability to fight and lead men into combat over his four combat tours into Afghanistan. a. During his second tour into Afghanistan, he and his team were engaged in an intense firefight with the enemy where he wrecked the all-terrain vehicle he was driving off the Helmand River incurring severe injuries including a complete dislocation of his let patella, a torn medial meniscus, a partially torn patella tendon as well as other injuries to his lower body. He was evacuated from Afghanistan to Germany and eventually back to Fort Bragg. His recovery time was cut short by his willingness to participate in the next combat deployment training. He returned to Afghanistan two more times, fighting everyday against the pain and weakness in his leg. b. The multiple injuries, traumas, and other medical conditions he is now facing have stripped him of his ability to even perform simple daily tasks such as walk up and down stairs without extreme pain. c. He was a dedicated and honorable Soldier, always putting the team and his job first. Despite this, in the eyes of a very select few, his mistake of using steroids seemed to void all he had done for this great country and they stripped him of his E-6 rank and honor. d. He takes full responsibility for his actions, however the military board that he was put in front of did not care to hear all the facts and let other accusations affect their decision. He was told by several senior noncommissioned officers and officers after his judgment was handed down to him that he was the example so every other operator would know that anabolic steroids would not be tolerated if caught with them. e. He was cleared of other accusations that were brought up during his trial. He has no civilian criminal record and he was cleared by the Criminal Investigation Division (CID) of any other military-related accusations. The initial charges of larceny and assault were eventually found to be false and inaccurate by civilian law enforcement and CID which is why he was never convicted by either civilian law enforcement or CID for these false charges. f. Anabolic steroid use is a major problem in the Special Operations community, used by many to gain the extra edge on the battlefield in order to keep up with the high demand placed on them. Almost every operator he served with and know used steroids, but he knows that still does not make it right. He is not defending his wrong doing of using anabolic steroids, but only asking that his service and sacrifice he has given to the nation be considered and restore the honor he has earned and deserves. g. Based on his good service record and the fact that other outside false accusations swayed the Board, he feels that he was unfairly treated and his discharge was inequitable. The under other than honorable conditions discharge he was given has stained every aspect of his life. He is unable to get a good-paying job to provide for his family, he is unable to receive the medical treatment he needs, and he is unable to look at himself in the mirror and see anything but shame. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 16 December 2004 * DD Form 214 with a separation date 20 November 2012 * Record of a traffic violation in North Carolina 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 28 July 2003, he enlisted in the U. S. Army Reserve (USAR). He was on active duty from 6 July 2004 to 16 December 2004. He completed basic combat and advanced individual training and was awarded military occupation specialty (MOS) 38A (Civil Affairs Specialist). 3. On 30 August 2005, he enlisted in the Regular Army. He immediately reenlisted on 17 April 2009. He served in MOS 11B (Infantryman) for 1 year and 10 months and MOS 18C (Special Forces Engineer Sergeant) for 5 years and 1 month. 4. On 1 June 2008, he was promoted to staff sergeant (SSG)/pay grade E-6 in MOS 18C. 5. The applicant served in Afghanistan from 12 November 2007 to 10 May 2008, from 1 March 2009 to 30 June 2009, from 12 January 2010 to 17 August 2010 and from 7 March 2011 to 3 July 2011. 6. A CID Investigative Report, dated 14 December 2011, reflects the applicant was the subject of an investigation for wrongful possession of steroids, misdemeanor assaults and batteries, and larceny of government property. 7. On 4 May 2012, the applicant received non-judicial punishment (NJP) for: * wrongfully possessing multiple pills and ?1m vials of steroids, a Schedule III controlled substance? * wrongfully appropriating between on or about 1 January 2008 and on or about 14 December 2011, four M81 shock tube initiators, one M6 Electric Blasting Cap, five M60 ignitors, and 20 feet of detonation cord, of some value, the property of the United States Military * on or about 14 December 2011, knowingly and wrongfully possessing and maintaining military grade explosives and military grade explosive materials at his private residence, such conduct being prejudicial to good order and discipline in the Armed Forces and being of a nature to bring discredit upon the Armed Forces 8. The punishment he received included reduction to sergeant/pay grade E-5. 9. On 19 July 2012, the applicant's commander notified him that action was being initiated to discharge him for the commission of a serious offense under the provisions of paragraph 14-12c of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) with an under other than honorable conditions character of service. The reasons for the proposed action were: a. On 13 December 2011, the applicant assaulted his fiancé by grabbing her by the neck and choking her. The Fayetteville Police Department arrested him on 14 December 2011 for assault, possession and use of steroids, larceny of military property (namely, four M8 Shock Tube Initiators, one M6 Electric Blasting Cap, five M60 Ignitors, and 20 feet of detonation cord), and possession of explosives in violation of Title 18, U.S. Code, section 842 and North Carolina General Statute section 14-288.8(a). b. He was also involved in minor misconduct such as violating a no-contact order issued by Major CDF for which he received an Article 15 on or about 25 September 2009 and missing accountability formations on 11 June 2012 and 12 June 2012 respectively for which he was counseled on a DA Form 4856 (Developmental Counseling Form). 10. His commander recommended his separation with a discharge under other than honorable conditions. He was advised of his right to: * consult with counsel * obtain copies of documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative board * submit a conditional waiver of his right to have his case heard by an administrative separation board * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge 11. On 19 July 2012, the applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for the commission of a serious offense. He indicated he was not a victim of sexual assault. 12. On 24 July 2012, the applicant submitted a request for conditional waiver of consideration of his case by an administrative board. a. He was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense and its effect, of the rights available to him, and of the effect of any action taken by him in waiving his rights. b. He understood he was entitled to have his case considered by an administrative separation board because he had 6 or more years of active and reserve service at the time of notification of separation and he was being recommended for a separation under other than honorable conditions. c. The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service or description of separation no less favorable than general under honorable conditions. d. He was not submitting statements in his own behalf. e. He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. f. He understood he could, until the date the separation authority orders, directs, or approves his separation, withdraw this waiver and request that an administrative separation board hear his case. g. He understood that if the separation authority refuses to accept his conditional waiver of a hearing before an administrative separation board, his case would be referred to an administrative separation board. In that case he: * requested personal appearance before an administrative board * requested appointment of military counsel for representation * understood that his willful failure to appear before the administrative separation board by absenting himself without leave will constitute a waiver of his rights to person appearance before the board h. He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. i. He did not file an unrestricted report of sexual assault within 24 months of initiation of the separation action. 13. On 25 July 2012, the applicant's commander reviewed the applicant's separation packet and the waiver of consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general under honorable conditions. After careful consideration of all matters, the commander recommended the applicant be separated from the United States Army prior to the expiration of his current term of service and that his service be characterized as under other than honorable conditions. 14. On 25 July 2012, the applicant's commander recommended the applicant be separated from the United States Army prior to the expiration of his term of service under the provisions of AR 635-200, chapter 14-12c. The reasons for the proposed action were: a. On 13 December 2011, the applicant assaulted his fiancé by grabbing her by the neck and choking her. The Fayetteville Police Department arrested him on 14 December 2011 for assault, possession and use of steroids, larceny of military property (namely, four M8 Shock Tube Initiators, one M6 Electric Blasting Cap, five M60 Ignitors, and 20 feet of detonation cord), and possession of explosives in violation of Title 18, U.S. Code section 842 and North Carolina General Statute section 14-288.8(a). b. He was also involved in minor misconduct such as violating a no-contact order issued by Major CDF for which he received an Article 15 on or about 25 September 2009 and missing accountability formations on 11 June 2012 and 12 June 2012 respectively for which he was counseled. 15. The findings and recommendation of the applicant's administrative separation board are not available for review. 16. On 31 October 2012, after carefully considering the applicant's separation packet, the recommendations of the chain of command, and the findings and recommendations of the administrative separation board, the separation authority directed the applicant be discharged with a characterization of service as under other than honorable conditions and that he be reduced to the rank of private/pay grade E-1. The Soldier had not filed an unrestricted report of sexual assault within 24 months of initiation of the separation action. 17. On 20 November 2012, the applicant was discharged under the provisions of AR 635-200, chapter 14-12c, misconduct (serious offense). He completed 3 years, 7 months, and 4 days of active service that was characterized as under other than honorable conditions. (He had previous honorable service from 30 August 2005 to 16 April 2009 for which a DD Form 214 was not issued.) His DD Form 214 shows he was awarded or is authorized the: * Bronze Star Medal (2 Awards) * Army Commendation Medal with "V" device * Army Commendation Medal (2 awards) * Army Good Conduct Medal (2nd Award) * Army Reserve Components Achievement Medal * Afghanistan Campaign Medal with 2 bronze service stars * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon (2nd Award) * Army Service Ribbon * NATO Medal * Combat Infantryman Badge * Special Forces Tab * Basic Military Freefall Parachutist Badge * Parachutist Badge 18. On 14 February 2014, the applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge. a. On 28 January 2015, the ADRB voted (3 to 2) to change the characterization of his discharge to general under honorable conditions. b. On 11 February 2015, the applicant was notified of the ADRB vote. However, because his file did not contain any supporting evidence, the President of the Board did not support the ADRB vote and was forwarding his case to the Deputy Assistant Secretary of the Army (DASA) – Review Boards (RB). He was advised if he had any additional evidence for consideration to submit them within 30 days. c. On 30 June 2015, the DASA – RB agreed with the President, ADRB. The applicant did not submit any additional evidence in support of his application. d. On 9 July 2015, the applicant was notified that upon review, the Secretarial Reviewing Authority adopted the Board President's recommendation to overturn the Board's decision in that he failed to provide sufficient documentation to support his contentions and the Secretarial Reviewing Authority found his testimony not to be creditable to overcome the presumption of government regularity. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 deals with separation for various types of misconduct. Paragraph 14-12c provides for the separation of a Soldier by reason of commission of a serious offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of chapter 14. b. 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. 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. DISCUSSION: 1. The applicant had honorable service from 30 August 2005 to 16 April 2009, his first enlistment period in the Regular Army. 2. His service in Afghanistan and awards of two Bronze Star Medals, the Army Commendation Medal with "V" device, two additional Army Commendation Medals, and the Combat Infantryman Badge are noted. However, they appear insufficient to mitigate his misconduct. His illegal possession of drugs, wrongful appropriation of military property, and wrongful possession of military grade explosives and explosive materials are not commensurate with a Soldier of his rank and years of military service. 3. The applicant had been promoted to SSG, a position of authority and responsibility. In promoting the applicant to SSG, the Army reposed special trust and confidence in his professionalism to adhere to established Army standards. As a SSG, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him. Through his actions, he violated this special trust and confidence. 4. He was properly discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would have jeopardized his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013029 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013029 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2