IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150013082 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: 23 August 2016 DOCKET NUMBER: AR20150013082 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: 23 August 2016 DOCKET NUMBER: AR20150013082 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, under honorable conditions discharge to an honorable discharge * he also requests a personal appearance 2. The applicant states: a. The type of discharge shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) is not proper. It improperly characterized his service as provided by Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, then in effect, or by AR 135-178 (Army National Guard (ARNG) and U.S. Army Reserve (USAR) - Enlisted Administrative Separations), paragraph 12-1(c), currently in effect. He did not display any pattern of misconduct, much less commit the kind of misconduct described in the ARs as "commission of a serious offense." b. Per AR 135-178, paragraph 2-9(a), a Soldier can still receive an honorable discharge despite "disqualifying entries in the Soldier's military record." Furthermore, AR 135-178, paragraph 2-9(a), (e), and (f), provides that an honorable discharge is appropriate when the Soldier's "pattern of behavior" and receipt of "personal decorations" show she/he "met the standards of acceptable conduct and performance of duty for Army personnel." c. His DD Form 214 shows that during his enlistment period he earned the Army Good Conduct Medal, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Infantryman Badge, and the Army Achievement Medal (3rd Award). He is also providing character references submitted on his behalf. d. During the summer of 1996, while stationed at the National Training Center (NTC), he and several other Soldiers contracted scarlet fever. His squad leader became frustrated with him because of the length of his sickness/recovery and the follow-up appointments with medical providers to ensure he recovered properly and could return to the field as the opposing force (OPFOR). e. His squad leader falsely accused him of malingering and he got busted from specialist (SPC)/E-4 promotable to private first class (PFC)/E-3. He later advised him that if he agreed to "voluntarily" separate from the Army then his characterization of service would automatically convert to "honorable" because of a special program designed to reduce troop levels in order to meet the reduction in force (RIF) then in effect. His squad leader took advantage of his weakened physical and mental condition and he (the applicant) also felt guilty because the medical providers would not let him go to the field with his unit. Isolated, young, and inexperienced at the time, he decided to accept the "voluntary" discharge and did not reenlist. f. He needs an honorable discharge in order to return to service and enlist in the ARNG. His past employers did not support his decision but his current employer strongly supports his return to military service. 3. The applicant provides: * his DD Form 214 * General Discharge Certificate * one page of AR 635-200, dated 6 June 2005 * three pages of AR 135-178, dated 18 March 2014 * two statements of support 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 (RA) on 1 October 1992 for a period of 4 years. On 1 December 1994, he was promoted to the rank of SPC. 3. On 21 February 1995, he was assigned to G Troop, 2nd Battalion, 11th Armored Cavalry Regiment (ACR), Fort Irwin, CA. On 21 November 1995, he was counseled by his immediate supervisor for missing formation. 4. He reenlisted in the RA on 21 February 1996. 5. He was counseled by various members of his chain of command as follows: * on 27 February 1996, for failing to be at his appointed place of duty at the prescribed time and for lying to a noncommissioned officer (NCO) * on 19 March 1996, 10 April 1996, and 24 April 1996 for failing to be at his appointed place of duty * on 24 April 1996, for missing movement 6. On 6 June 1996, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on three separate occasions. Part of the punishment imposed was reduction to PFC, suspended, to be automatically remitted if not vacated before 4 September 1996. 7. On 12 June 1996, he was counseled for a letter of indebtness received by his immediate commander. 8. On 23 July 1996, he was ticketed by the Fort Irwin Military Police for reckless driving on post. 9. On 11 August 1996, his suspended reduction to PFC was vacated due to his failing to go to his appointed place of duty on 29 July 1996; he was reduced from SPC to PFC. 10. On 13 September 1996, the applicant underwent a mental status evaluation at his commander's request. The DA Form 3822 (Report of Mental Status Evaluation) shows the examining mental health physician noted: a. The applicant's behavior was normal, he was fully alert and fully oriented, his mood/affect was unremarkable, his thinking process was clear, his thought content was normal, he had the mental capacity to understand and participate in the proceedings, was mentally responsible, and he met the retention requirements of AR 40-501 (Standards of Medical Fitness), chapter 3. b. There was no evidence of an emotional or mental disorder of psychiatric significance or of sufficient severity to warrant disposition through medical channels. He was cleared for any administrative action deemed appropriate by the command. 11. On 16 September 1996, he underwent a medical examination. The Standard Form 88 (Report of Medical Examination) shows the examining physician checked the appropriate blocks of the form to show the applicant did not have any abnormalities other than several marks/scars, his PULHES was 1-1-1-1-1-1-1, and he was qualified for separation. 12. On 16 September 1996, he was counseled by his immediate commander that he was recommending a Bar to Reenlistment Certificate be placed against him based on his NJP and his vacated reduction to PFC. He checked the appropriate block of the DA Form 4126 (Bar to Reenlistment Certificate) to show he declined to submit a statement in his own behalf. His commander submitted the Bar to Reenlistment Certificate to the approving authority and stated that: * on 6 June 1996 the applicant received a suspended reduction to PFC and on 11 August 1996 the suspended reduction was vacated * the applicant had shown a history of performance less than desirable and it would not be tolerated in the unit or the Army 13. In a memorandum to his immediate commander, dated 17 September 1996, the Fort Irwin Regimental Surgeon stated that the applicant was seen on sick call that morning for a complaint of sinus pain and headaches which began after exposure to paint fumes on 16 September 1996. He was prescribed medication for the headaches and sent back to duty with the following profile, "Avoid paint fumes x 72 hours." He was NOT given quarters. 14. On 23 September 1996, the approving authority approved the Bar to Reenlistment Certificate. On 24 September 1996, the applicant was counseled on the approved Bar to Reenlistment and checked the appropriate block of the form to show he would not appeal the bar. 15. On 9 October 1996, he received NJP under the provisions of Article 15, UCMJ, from his senior commander for falsifying an official document with the intent to deceive, a DA Form 689 (Sick Slip), wherein he added the words that he received 24 hours quarters. Part of the punishment imposed was reduction to private (PV1)/E-1, suspended, to be automatically remitted if not vacated before 7 December 1996. 16. On 5 November 1996, he was notified by his immediate commander of his intent to initiate separation action against him for misconduct under the provisions of AR 635-200, paragraph 14-12c, for the commission of a serious offense. Specifically, the commander cited the Article 15 he received for falsifying an official document with the intent to deceive his chain of command. He stated he was recommending the issuance of a general, under honorable conditions discharge. 17. On 5 November 1996, the applicant acknowledged receipt of the commander's notification to initiate separation action against him. On 7 November 1996, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him. 18. He acknowledged that he understood he may encounter substantial prejudice in civilian life if a general discharge was issued to him and he may be ineligible for many or all benefits as a veteran under both Federal and State laws. He also acknowledged that he understood that if he received a discharge with a character of service less then honorable he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded. He declined to submit a statement in his own behalf. 19. On 8 November 1996, his immediate commander submitted the recommendation for the applicant's separation. His commander stated: a. On 17 September 1996 the applicant falsified his sick slip with the intent to deceive and received a field grade Article 15 for this action on 9 October 1996. He also received a bar to reenlistment on 16 September 1996 and a company grade Article 15 on 6 May 1996. b. The applicant had been continuously disruptive. He attempted to deceive his chain of command and had failed to be at his appointed place of duty on numerous occasions. Also, the falsifying of the DA Form 689 was a serious offense and should be punished accordingly. c. His commander also listed the awards the applicant had received. 20. On 15 November 1996, his senior commander recommend approval of the separation action with the issuance of a General Discharge Certificate. 21. On 19 November 1996, the separation authority approved the applicant's separation and directed the issuance of a General Discharge Certificate. On 12 December 1996, he was discharged accordingly. 22. The DD Form 214 he was issued confirms he was discharged under the provisions of AR 635-200, paragraph 14-12c, for misconduct with a general, under honorable conditions characterization of service. He completed 4 years, 2 months, and 12 days of net active service. His DD Form 214 also shows the: * Army Service Ribbon * National Defense Service Medal * Army Good Conduct Medal * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar * Expert Infantryman Badge * Army Achievement Medal (3rd Award) * Driver Badge with Track Vehicle Bar 23. There is no evidence in his record that shows while serving on active duty he was diagnosed with scarlet fever or any mental or medical disease/disorder that prevented him from performing his military duties. 24. There is no evidence that he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations. 25. The applicant provides: a. An undated letter from a former supervisor, wherein he stated he highly recommended the applicant for employment. He was a team player and would make a great asset to any organization. b. An undated letter from a retired first sergeant (1SG), wherein he stated he served with the applicant for 2 years as his platoon leader, platoon sergeant, and 1SG. During the time served together, he watched the applicant train and deploy with his unit in a most aggressive manner. The applicant worked very well unsupervised and his equipment and personal gear was always in top shape. It was disturbing to hear he was discharged with a less than honorable discharge and there had to have been some misunderstanding as to his potential after leaving his unit in Germany and being assigned to the NTC, Fort Irwin. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the version in effect at the time and in the current version establishes policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a states 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. c. Paragraph 3-7b states 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. 2. AR 135-178 governs the administrative separation of ARNG and USAR Soldiers, it does not apply to members of the RA. DISCUSSION: 1. The evidence of record confirms the applicant committed a serious offense. He demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the adverse counseling by his chain of command, the Bar to Reenlistment placed against him, and the NJP he received on two separate occasions for failing to report on several occasions and falsifying an official document. Accordingly, his immediate commander initiated separation action against him. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He was involuntarily discharged on 12 December 1996 under the provisions of AR 635-200, paragraph 14-12c, for misconduct with a general, under honorable conditions discharge. 3. It appears his chain of command took his complete record of service into consideration when he was discharged with a general, under honorable conditions discharge vice an under other than honorable conditions discharge. 4. Notwithstanding the applicant's contentions, there is no evidence that shows while assigned to Fort Irwin he was diagnosed with scarlet fever or any other medical condition that prevented him from performing his duties. In addition, at the time of his separation he was counseled by legal counsel and acknowledged that he understood that he could request an upgrade of his discharge from the ADRB and ABCMR but that did not imply that his discharge would be upgraded. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013082 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013082 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2