IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150013780 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: 7 February 2017 DOCKET NUMBER: AR20150013780 BOARD DETERMINATION/RECOMMENDATION: 1. As for the character of service, the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070010013 on 29 November 2007 and Docket Number AR20090000156 on 11 June 2009. 2. As for the new issues, 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 to the applicant's DD Form 214 for the period ending 15 March 2004 the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Grenade Bar. 3. As for the other administrative corrections he requested, 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 correcting his DD Form 214 or the period ending 15 March 2004 to show: * rank/grade of private first class (PFC)/E-3 instead of private (PVT)/E-1 * completion of 2 years duty in military occupational specialty 95B * Expert Marksman Marksmanship Qualification Badge with Pistol Bar * completion of the 17-week Military Police Course _____________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: 7 February 2017 DOCKET NUMBER: AR20150013780 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 reconsideration of his earlier requests for an upgrade of his under other than honorable conditions discharge. 2. As new issues he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 March 2004 as follows: * Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) to show private first class (PFC)/E-3 instead of private (PVT)/E-1 * Item 11 (Military Specialty), add 95B (Military Police (MP)), 2 years * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), add the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Grenade Bar, and Expert Marksman Marksmanship Qualification Badge with Pistol Bar * Item 14 (Military Education), add the 17-week MP Course 3. The applicant states that he was a PFC/E-3 when joined active duty from the Indiana Army National Guard (INARNG). His DD Form 214 does not reflect that. He also completed the 17-week MP Course and received awards and decorations. He wants the Board to consider his 2 years of honorable service prior to the events that led to his discharge. The Board should also consider his positive impact on our country as a veteran since his discharge and his successful completion of his Bachelor of Arts degree in criminal justice. He also wants the Board to consider that he does not have any criminal record other than the one related to his discharge and his current honorable service in the Texas military forces. 4. The applicant provides: * DD Forms 214 for periods ending 15 March 2004 and 22 January 1999 * NGB Form 22 (Report of Separation and Record of Service) * College transcripts CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records reviewed in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070010013 on 29 November 2007 and Docket Number AR20090000156 on 11 June 2009. 2. The applicant requests reconsideration of his earlier request for an upgrade of his discharge. He also raises new issues concerning his grade, training, and awards. This warrants consideration by the Board. 3. The applicant enlisted in the INARNG on 3 February 1998. He appears to have been advanced to PFC/E-3 on 1 August 1998. 4. He entered active duty for training (ADT) on 8 September 1998 and completed the 17-week MP Course. He was honorably released from ADT on 22 January 1999 to the control of is State ARNG. His DD Form 214 for this period of service shows in: * Items 4a and 4b, the entries PFC and E-3 * Item 11, 95B Military Police * Item 12h (Effective Date of Pay Grade), 1 August 1998 * Item 13, the Army Service Ribbon * Item 14, the Law Enforcement Course, 17 weeks, January 1999 5. He was discharged from the INARNG on 14 February 2000. His NGB Form 22 listed his rank/grade as PFC/E-3 as well as the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) and Expert Marksman Marksmanship Qualification Badge with Pistol Bar. 6. He enlisted in the Regular Army in the rank/grade of private (PV2)/E-2 on 15 February 2000. He was assigned to the 258th MP Company, 519th MP Battalion, Fort Polk, LA. 7. On 4 March 2000 he departed his unit in an absent without leave (AWOL) status but he returned to military control on 6 March 2000. 8. On 8 March 2000 he again departed his unit in an AWOL status but he returned to military control on 6 April 2000. 9. On 6 April 2000 he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 4 to 6 March 2000. His punishment consisted of reduction to PVT/E-1, forfeiture of pay, extra duty, and restriction. 10. On 7 April 2000 he departed his unit in an AWOL status and on the same date he was dropped from the Army rolls as a deserter. He was apprehended by civil authorities in Minden, LA, and returned to military control on 10 July 2003. He was assigned or attached to the Personnel Control Facility, Fort Knox, KY, for disposition off the charges. 11. On 13 July 2000 he departed the Personnel Control Facility in an AWOL status. He returned to military control on 1 August 2003. He was assigned to the U.S. Army Field Artillery Center, Fort Sill, OK, for disposition of the charges. 12. On 21 August 2003 his command preferred court-martial charges against the applicant for four specifications of AWOL (4 to 6 March 2000, 8 March to 6 April 2000, 7 April 2000 to 10 July 2001, and 13 July 2001 to 1 August 2003). 13. On 22 August 2003, the applicant consulted with legal counsel who advised him of his rights. He also advised him 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, and the possible effects of a request for discharge. Following consultation with legal counsel, he 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. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person; he did not desire any further rehabilitation under any circumstances and that he had no desire to perform further service * 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 discharge or a discharge under other than honorable conditions * 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 Department of Veterans Affairs (VA); and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf 14. On 22 and 27 October 2003, the immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. The immediate commander opined that the applicant, with 1,239 days of lost time, became disillusioned with the military and his retention was not in the best interests of the Army. 15. On 27 October 2003, consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the applicant's request for voluntary discharge for the good of the service – in lieu of trial by a court-martial in accordance with AR 635-200, chapter 10. The separation authority directed the applicant’s reduction to the lowest enlisted grade, if applicable, and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 15 March 2004, the applicant was accordingly discharged. 16. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service – in lieu of trial by a court-martial with an under other than honorable conditions discharge. He completed 1 year and 4 days of service and he had multiple periods of lost time. His DD Form 214 also shows in: * items 4a and 4b, PVT and E-1 * item 11, 31B1O, Military Police, 0 years and 0 months * item 12h, 6 April 2000 * items 13 and 14, None 17. On 28 July 2006 the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade. 18. On 29 November 2007 the ABCMR denied his petition for an upgrade of his discharge (AR20070010013). 19. In December 2008 he requested reconsideration of his request for an upgrade of his discharge (AR20090000156). On 11 June 2009 the Board again denied his request. 20. He provides his DD Forms 214, an NGB Form 22, and college transcripts. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides for 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, an under other than honorable conditions discharge was considered appropriate at the time. a. Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. 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. c. 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. 2. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. It states: * items 4a and 4b will show the active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion and reduction orders * item 11, enter the titles of all MOS served for at least 1 year and include for each MOS the number of years and months served; for time determination, 16 days or more count as a month; do not count basic training and AIT * item 12h, from the most recent promotion order or reduction instrument, enter the effective date of promotion to the current pay grade * item 13, list awards and decorations for all periods of service in the priority sequence specified in the governing regulation * item 14, list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 3. AR 600-8-22 (Military Awards) sets forth requirements for award of basic marksmanship qualification badges. The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman – in which an individual has qualified in a prescribed record course. An appropriate bar is furnished to denote each weapon with which the individual has qualified. For example, Expert Marksmanship Qualification Badge with Rifle Bar or Sharpshooter Marksmanship Qualification Badge with Pistol Bar or Marksman Marksmanship Qualification Badge with Automatic Rifle Bar. Award of marksmanship qualification badges is not permanent. An award for a previous marksmanship qualification is revoked automatically whenever an individual, upon completion of firing a record course for which the previous award was made, has not attained the same qualification. DISCUSSION: 1. With respect the character of service: a. The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10 are voluntary requests for discharge in-lieu of trial by court-martial. 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. b. Following consult with counsel, the applicant voluntarily submitted a request for discharge. He acknowledged that he had not been coerced into making this request. In his request, the applicant voluntarily chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge. He could have elected trial by a court-martial. c. Based on his record of indiscipline which included an Article 15, multiple periods of AWOL – including a very lengthy AWOL, and court-martial charges, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory. 2. With respect to his grade: a. Although he held the rank/grade of PFC/E-3 in the ARNG, he enlisted in the RA in the rank/grade of PV2/E-2. Shortly after his RA enlistment, he accepted NJP for being AWOL and the resultant punishment was a reduction to PVT/E-1 on 6 April 2000. b. Additionally, the regulation in effect then (and the one currently in effect) stated that when a Soldier was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. Regardless of the applicant's rank at the time of transfer from the ARNG to the RA or at the time court-martial charges were preferred against him, once the separation authority approved his discharge, he also ordered his reduction to the lowest enlisted grade. c. Since the applicant held the rank/grade of PVT/E-1 at the time of his separation, his DD Form 214 correctly lists his rank/grade and effective date of pay grade. 3. With respect to his MOS and training: a. The applicant completed the 17-week MP Course from 8 September 1998 to 22 January 1999. He received credit for this course on a previous DD Form 214 (September 1998 to January 1999) as he completed this course during the period covered by that DD Form 214. He did not complete this course during the period covered by the DD Form 214 in question (October 1999 to March 2004). b. Although he was trained in and held MOS 95B (which was later changed to 31B), during the period covered by the DD Form 214 in question, he did not serve in this MOS for at least 1 year as he was either AWOL, in confinement, or on excess leave. Since the applicant did not serve in MOS 31B during the period in question, his DD Firm 214 correctly credited him with zero years and months in this MOS. 4. With respect to his awards and decorations: a. He was awarded the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Grenade Bar, as shown on his DD Form 214 for the period ending 22 January 1999 and NGB Form 22 for the period ending 4 February 2000. These awards are not listed on his DD Form 214 for the period ending 15 March 2004. b. There is no evidence, such as an order, a memorandum, and entry on his DA Form 2-1, a firing record, or any other document to show he qualified with the pistol and the degree of qualification. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013780 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013780 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2