IN THE CASE OF: BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150014777 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150014777 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a new DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows his service characterized as under honorable conditions (general). ___________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: 22 December 2016 DOCKET NUMBER: AR20150014777 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 correction of his records to show he was discharged with an under honorable conditions (general) service characterization versus the under other than honorable conditions (UOTHC) service characterization that appears on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states, in pertinent part, his service records reflect that his commanding officer ordered that he be discharged with a characterization of service as "general, under honorable conditions." It was a lower ranking commanding officer who ordered in a memorandum that his discharge be approved as UOTHC. 3. The applicant provides: * DD Form 214 for the period ending30 December 2003 * Permanent Orders Number 127-51, issued by Headquarters, Task Force Falcon on 7 May 2003, which awarded him the Combat Infantryman Badge (CIB) * memorandum from 325th Airborne Infantry Regiment, dated 24 December 2003, documenting his jump status * memorandum from B Company, 3rd Battalion, 325th Airborne Infantry Regiment, 82nd Airborne Division, undated, discharge notification * memorandum from Headquarters, 2d Brigade, 325th Airborne Infantry Regiment, 82nd Airborne Division, undated, approval of discharge * DA Form 21-4138 (Statement in Support of Claim), dated 25 November 2014 * three excerpts from the Code of Federal Regulations (CFR) 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 30 October 2001. After completing his initial entry training, he was awarded military occupational specialty 11B (Infantryman). 3. By summary court-martial (SCM) on or about 17 September 2003 he was charged and found guilty of: * two specifications of possessing a controlled substance (valium) on or about 16 and 17 May 2003 * two specifications of transferring a controlled substance (valium) on or about 16 and 17 May 2003 His sentence consisted of forfeiture of two-thirds pay for one month, reduction to E-1, and 30 days of confinement. 4. The applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c, for misconduct. The commander cited the reasons for the proposed separation action as the applicant's SCM in violation of General Order Number 1, dated 17 September 2003, in a deployed environment. His commander indicated that he intended to recommend a general, under honorable conditions discharge. 5. On 23 October 2003, the applicant acknowledged receipt of the proposed separation action and that he was advised of his rights. He declined the opportunity to consult with legal counsel and to submit a statement in his own behalf. 6. Subsequent to the applicant's acknowledgement, his commander formally initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 14-12c. The applicant's battalion commander concurred with the recommendation for separation and recommended the applicant's service be characterized as UOTHC. 7. The approval authority approved the applicant's recommended discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed he receive an under honorable conditions (general) characterization of service. 8. On 30 December 2003, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. His DD Form 214 shows his service was characterized as UOTHC. Additionally, it shows he served in Iraq from 14 February 2003 to 1 November 2003. He was credited with 2 years, 2 months, and 1 day of net active service this period. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct consisting solely of minor military disciplinary infractions, a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC 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. DISCUSSION: 1. The applicant's request for correction of his records to show he was discharged with an under honorable conditions (general) service characterization versus the UOTHC service characterization that appears on his DD Form 214, was carefully considered. 2. The evidence of record confirms the applicant's immediate commander recommended his discharge with a general, under honorable conditions service characterization. The intermediate commander approved his separation and recommended he receive an UOTHC service characterization. Subsequently, the approval authority approved his separation and directed his service be characterized as under honorable conditions (general). 3. The applicant's DD Form 214 does not accurately reflect the character of service approved by the separation approval authority. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014777 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014777 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2