BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150015168 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: AR20150015168 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: AR20150015168 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 under other than honorable conditions characterization of service. 2. The applicant states his discharge resulted from an isolated incident. His noncommissioned officers retaliated against him by putting him out of the military for unjust reasons. The same thing happened to another Soldier in his unit. 3. The applicant does not provide any additional evidence. 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 14 October 2008 and he held military occupational specialty 92G (Food Service Specialist). He served in Iraq from 18 October 2009 to 26 June 2010. 3. He was frequently counseled by members of his chain of command for various infractions including: * failure to report on multiple occasions * being absent from duty * leaving extra duty without permission * failing to follow instructions * disrespecting a superior commissioned officer 4. He received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 18 March 2011 for failing to go at the time prescribed to his appointed place of duty * 29 June 2011 for being absent without leave (AWOL) from 17 May 2011 to 1 June 2011 5. On 13 October 2011, he was convicted by a summary court-martial of one specification of being AWOL from 21 June to 29 June 2011, four specifications of failing to go at the time prescribed to his appointed place of duty, and one specification of willfully disobeying a lawful order. The court sentenced him to confinement for 30 days. The convening authority approved the sentence. 6. On 8 December 2011, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) for misconduct – pattern of misconduct. He cited the applicant's repeated acts of misconduct including AWOL, failing to obey orders, and making a false official statement. He recommended an under other than honorable conditions characterization of service. 7. On 8 December 2011, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected to submit a statement in his own behalf, but failed to submit it within the allotted time. The applicant further acknowledged: * he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he understood that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws 8. On 9 December 2011, and subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of AR 635-200 for misconduct – pattern of misconduct. His chain of command recommended approval with the issuance of an under other than honorable conditions discharge. 9. On 3 February 2012, consistent with the chain of command's recommendations, the separation authority approved the applicant's separation and directed he be discharged under other than honorable conditions. Accordingly, the applicant was discharged on 17 February 2012. 10. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of AR 635-200, chapter 14, by reason of misconduct with his service characterized as under other than honorable conditions. This form further confirms he completed a total of 3 years, 10 months, and 10 days of net active service with lost time from 17 May to 1 June 2011 and 21 June to 29 June 2011. It also shows in: * Item 25 (Separation Authority), AR 635-200, Chapter 14, Section II * Item 26 (Separation Code), JKB * Item 27 (Reentry Code), 4 * Item 28 (Narrative Reason for Separation), Misconduct (Civil Conviction 11. On 30 May 2014, the Army Discharge Review Board (ADRB) reviewed his discharge processing. The ADRB determined his discharge was proper and equitable. However, the ADRB found his DD Form 214 contained administrative errors that warranted correction. 12. He was reissued a corrected DD Form 214 that shows his character of service as under other than honorable conditions. However, corrections were made to: * Item 25, from AR 635-200, Chapter 14, Section II, to AR 635-200, paragraph 14-12b * Item 26, from JKB to JKA * Item 27, from 4 to 3 * Item 28, from Misconduct (Civil Conviction) to Pattern of Misconduct REFERENCE: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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. Paragraph 3-7a states 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. e. Paragraph 3-7b states 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 contends his noncommissioned officers retaliated against him after one incident of misconduct. However, he exhibited a pattern of misconduct as evidenced by his multiple instances of NJP, negative counseling, and conviction by a court-martial. Accordingly, his chain of command initiated separation action against him for his pattern of misconduct under the provisions of chapter 14 of AR 635-200. He was advised of and exercised his rights. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He was accordingly discharged under the provisions of chapter 14 of AR 635-200 due to this misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015168 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015168 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2