BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014682 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 BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014682 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. BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014682 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 upgrade of his general, under honorable conditions discharge. 2. The applicant states he dropped out of college in 2006 and enlisted in the Regular Army (RA). He was awarded military occupational specialty (MOS) 13B (Cannon Crewmember) and he advanced in grade ahead of his peers. He was assigned to Fort Riley, KS; promoted to sergeant (SGT)/pay grade E-5; and then deployed to Iraq where he served as a gunner in a convoy escort platoon. a. He reenlisted in the RA for a period of 3 years with assignment to Hawaii. While serving in Hawaii he was having marital problems and was told that he had to live in the barracks. He was 22 years of age at the time. He met a 41 year old Soldier (Specialist (SPC) SCB). One Saturday afternoon, SPC SCB offered to buy the applicant lunch and also give him advice on his impending divorce. Afterwards, they went their separate ways. Later that evening, SPC SCB got into trouble and was arrested. However (for reasons the applicant does not offer), the chain of command decided to punish the applicant, rather than SPC SCB. b. He states that he received nonjudicial punishment (NJP) due to the actions of SPC SCB. He felt he was not being treated fairly, so he requested trial by court-martial. The sergeant major tore up the applicant's request and had him transferred to another unit. He was assured that he would not be punished for the previous incident. c. The applicant describes another incident in which a Soldier "was flashing cars at a gate on base." Rather than the Soldier being arrested, the applicant was put on barracks guard duty (presumably by his supervisor or commander). He and his fiancée at the time had plans to attend a benefit concert. He went to the concert, drank (presumably alcohol), and went to bed. Later on, he got into an automobile accident on his way to work and a police officer stopped at the accident scene. Then, a police sergeant arrived who said that he could smell the odor of alcohol on the applicant's breath. The applicant was taken into custody, failed a breathalyzer test, and was arrested. d. He was told that if he deployed with his unit his punishment would be based upon the outcome of his court case. He deployed to Afghanistan in March 2011. Seven months into his deployment, his commander notified him of his intent to initiate separation action. After months of unfair treatment, he was reduced to private (E-1) and discharged from the Army based on a pattern of misconduct. He adds that he went to court for the charge of driving under the influence (DUI) and it was dismissed. He concludes that the chain of command held a grudge for the first incident and he was treated unfairly. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and: * self-authored statement (summarized above) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * separation packet with enclosures * three DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Reports) * three character reference letters * civilian traffic record CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the RA on 25 October 2006 for a period of 3 years and 19 weeks. Upon completion of training he was awarded MOS 13B. a. He served in Iraq in support of Operation Iraqi Freedom from 8 October 2008 through 18 September 2009. b. He reenlisted in the RA on 7 February 2009 for a period of 5 years. c. He was promoted to SGT (E-5) on 1 March 2009. d. He served in Afghanistan in support of Operation Enduring Freedom from 5 April 2011 through 16 November 2011. 2. On 20 September 2011, Brigadier General JMR, Deputy Commanding General (DCG), Combined Joint Task Force-1 (CJTF-1), Regional Command - East, Bagram Airfield, Afghanistan, reprimanded the applicant for driving while intoxicated (DWI) in Kapolei, HI, on or about 20 February 2011. He noted the applicant failed a field sobriety test, was arrested, and was transported to the Kapolei Police Department. The applicant consented to and failed a breath alcohol test resulting in a breath alcohol content (BRAC) of .181, which was more than twice the legal limit. a. The reprimand was imposed as an administrative measure and not as punishment pursuant to the Uniform Code of Military Justice (UCMJ). In accordance with Army Regulation (AR) 600-37 (Unfavorable Information), paragraph 3-6, the DCG, CJTF-1, advised the applicant that he was considering filing the reprimand permanently in his Official Military Personnel File (OMPF), but he would consider written matters the applicant wished to submit before making his filing decision. The applicant was provided 7 calendar days from receipt to submit any written matters in rebuttal. b. On 22 September 2011, the applicant acknowledged receipt of the General Officer Memorandum of Reprimand (GOMOR). He indicated that he would submit written matters within 7 calendar days. (A review of the applicant's OMPF failed to reveal evidence that he submitted matters for consideration to the DCG, CJTF-1.) c. The applicant's chain of command recommended the GOMOR be filed in the applicant's OMPF. d. On 18 October 2011, after consideration of the facts and circumstances pertaining to the applicant's case, the chain of command recommendations, and all matters submitted in accordance with AR 600-37, paragraph 3-6, the DCG, CJTF-1, directed the GOMOR be filed permanently in the applicant's OMPF. e. A review of the applicant's OMPF shows the GOMOR, dated 20 September 2011, along with 22 pages of allied documents, is filed in the performance folder of his OMPF. 3. A copy of the applicant's administrative separation packet is not available in his military personnel record. 4. A DD Form 214 shows the applicant entered active duty this period on 25 October 2006 and he was discharged on 23 May 2012 under the provisions of (UP) AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, based on a pattern of misconduct with a general, under honorable conditions character of service. He had completed 5 years, 6 months, and 29 days of total active service during this period. It also shows his rank as private (PV1)/pay grade E-1 with an effective date of 28 March 2012. 5. The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 4 November 2013, the ADRB notified the applicant the reason for his discharge and the character of his service were both proper and equitable and denied the applicant relief. 6. In support of his application the applicant provides the following additional documents: a. Three DA Forms 2823 (Sworn Statements), completed by SPC SCB, Sergeant (SGT) JAL, and Sergeant First Class (SFC) GSC. They show SPC SCB and the applicant had lunch at a Jimmy Buffet restaurant on 15 May 2010, they consumed alcohol, were asked to leave the bar, and SPC SCB got into an altercation. While driving home, the applicant called SGT JAL to inform him about the trouble one of his Soldiers (i.e., SPC SCB) had gotten into. The applicant told SGT JAL that he had also been drinking. SGT JAL instructed the applicant to pull his car over. Then, SGT JAL and SFC GSC went to the location (across from Macomb Gate) where the applicant had parked his car. b. On 29 September 2010, the Commander, Battery A, 3rd Battalion, 7th Field Artillery, Schofield Barracks, HI, reprimanded the applicant for failing to obey an order issued per the Battalion Commander's Fraternization Policy, dated 22 February 2010, by engaging in fraternization (on 15 May 2010) with a Solder of a different rank. c. On 30 March 2011, the applicant accepted NJP for failing to go to at the time prescribed to his appointed place of duty on 26 February and 28 February 2011. He did not demand trial by court-martial, he requested a closed hearing, a person to speak in his behalf was not requested, and matters in defense, extenuation, and/or mitigation were not presented. The commander found him guilty of all specifications. His punishment was forfeiture of $571 pay per month for one month and an oral reprimand. d. Three NCO Evaluation Reports pertaining to the applicant that show the ratings of the raters and senior raters, as follows: * 1 March 2009 through 22 January 2010 – * Rater: overall potential for promotion: "Marginal" * Senior Rater – * overall performance: "Fair (4)" * overall potential for promotion: "Superior (3)" * 28 January 2010 through 27 January 2011 – * Rater: overall potential for promotion: "Fully Capable" * Senior Rater – * overall performance: "Successful (2)" * overall potential for promotion: "Superior (2)" * 28 January 2011 to 18 November 2011 – * Rater: overall potential for promotion: "Fully Capable" * Senior Rater – * overall performance: "Successful (2)" * overall potential for promotion: "Superior (2)" e. On 1 October 2011, the applicant's commander notified him that he was recommending him for separation UP AR 635-200, chapter 14 (Separation for Misconduct), paragraph 14-12b, based on a pattern of misconduct. (1) The reasons for his proposed action were: * on 15 May 2010, he disobeyed an order from his first sergeant by maintaining an unprofessional relationship with a junior enlisted Soldier * he failed to report to his appointed place of duty on 13 December 2010, 26 February 2011, and 28 February 2011 * on 20 February 2011, he was involved in a traffic collision and subsequently failed a breath alcohol test with a BRAC of .181% (2) The commander informed the applicant of his rights and the separation procedures involved. He also informed him he was recommending the issuance of a general, under honorable conditions character of service. (3) On 4 October 2011, following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him. (a) He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him. (b) The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could make application to the ADRB or the Army Board for Correction of Military Records (ABCMR) for upgrading his discharge. However, an act of consideration by either board did not imply that his discharge would be upgraded. (c) He was informed the he could submit matters on his behalf concerning his pending discharge. He elected not to submit statements in his own behalf. (d) The applicant and his counsel placed their signatures on the document. (4) The chain of command recommended approval of the applicant's discharge with a general, under honorable conditions characterization of service. (5) On 21 October 2011, the separation authority approved the recommendation for discharge of the applicant and directed his service be characterized as (general) under honorable conditions. (6) The applicant redeployed to Schofield Barracks, HI, on 17 November 2011. f. Three character reference letters that show: * on 11 October 2011, First Sergeant KTP, U.S. Army (Retired), offered his endorsement of the applicant for his employment at an agency * on 5 October 2012, SGT LJR, U.S. Army, attested to the applicant's character and work ethic * on 22 October 2012, Command Sergeant Major JRG, U.S. Army (Retired), offered his endorsement of the applicant for employment in any positon of great responsibility g. State of Hawaii, Abstract of Traffic Record, that shows, in pertinent part, on 20 February 2011 the applicant was cited for the offense of DUI (impaired/ breath), he pled not guilty, and the case was dismissed without prejudice on 3 August 2012. REFERENCES: 1. AR 635-200 sets forth the authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. b. Chapter 3, 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. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends, in effect, that his discharge should be upgraded because he was treated unfairly, punished for actions he was not guilty of, and his discharge was based on an incident that was dismissed by the civil authorities. 2. The evidence of record shows: a. On 15 May 2010, the applicant admitted to an NCO of having consumed alcohol with a junior enlisted Soldier and driving his automobile while under the influence of alcohol. b. On 29 September 2010, he was reprimanded for fraternization with a junior enlisted Soldier on 15 May 2010; not for the actions of that Soldier. c. The 26 February 2011 offense of DUI was dismissed without prejudice on 3 August 2012; however, this does not amount to a finding of not guilty. d. On 30 March 2011, he received NJP for failing to go to his appointed place of duty on two different occasions. e. On 20 September 2011, he was reprimanded for DWI. 3. The reprimands were imposed as administrative measures, not punishment under the UCMJ. 4. There is no evidence of record that supports the applicant's contention that he received NJP due to the actions of another Soldier. 5. The evidence of record shows the copy of the administrative separation packet the applicant provides was approved on 21 October 2011. a. He redeployed to Schofield Barracks, HI, on 17 November 2011. b. He was reduced to the rank of private (E-1) effective 28 March 2012. (The details for the reduction are not available.) c. He was discharged on 23 May 2012. d. Based on the available evidence of record, it may be concluded that the applicant was reduced in grade for actions that occurred subsequent to the date that the separation authority approved the separation action. e. The evidence of record shows a pattern of misconduct, which was the basis for his administrative discharge. 6. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, it is presumed that the applicant's separation UP AR 635-200, paragraph 14-12b, based on a pattern of misconduct was both proper and equitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014682 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014682 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2