SAMR-RB 25 April 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150015915 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 28 March 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army records of the individual concerned be corrected by adding to his DD Form 214 in item 18 the entry "Continuous Honorable Active Service from 20020613 until 20041223." I direct no further correction to be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 25 August 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150015915 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: 28 March 2017 DOCKET NUMBER: AR20150015915 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: 28 March 2017 DOCKET NUMBER: AR20150015915 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 under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge. 2. The applicant states that the administrative separation action pertaining to his UOTHC discharge based on misconduct (serious offense) was never approved. a. He states that Lieutenant Colonel (LTC) P___ D. D____, Commander, 1st Battalion, 33rd Field Artillery (FA), recommended approval of his separation; however, the division commander did not sign the document approving the separation action and characterization of service. (He also states that Colonel (COL) W___ G____, Commander, Division Artillery (DIVARTY), was the final approval authority.) b. He states the battalion commander acted hastily to disband the unit and remove Soldiers who had isolated incidents of misconduct. He also states that combat stressors and the actions by the chain of command with regard to poor reintegration measures when the unit returned from Iraq contributed to his misconduct. In addition, he was not afforded the opportunity to complete his military service obligation in the U.S. Army Reserve (USAR) Control Group (Reinforcement). c. He states that he served honorably during the period of his first enlistment and he was recognized with awards for his outstanding service. He reenlisted and acknowledges that he then made mistakes; however, his offense of smoking marijuana on one occasion was an isolated incident. d. He states that his discharge was unjust and illegal. His attempts to correct this injustice have been unsuccessful. He adds that he has submitted a claim to the Department of Veterans Affairs (VA); however, the characterization of his discharge is preventing him from receiving VA healthcare benefits. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) with self-authored statements/email messages (summarized above) and copies of: * two DA Forms 638 (Recommendations for Award) * his DD Form 256A (Honorable Discharge Certificate) * his Enlisted Record Brief * two pages from his separation packet * his DD Form 214 (Certificate of Release of Discharge from Active Duty) * a letter of support * Notice of Disagreement 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 13 June 2002 for a period of 3 years. Upon completion of training he was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist). a. He was assigned overseas to Germany on 25 November 2002. b. He was promoted to specialist (E-4) on 13 June 2004. c. He served in Iraq in support of Operation Iraqi Freedom from 10 February 2004 through 8 March 2005. 3. Two DA Forms 4980-14 (Army Commendation Medal (ARCOM) Certificates) show Headquarters, 1st Infantry DIVARTY, Forward Operating Base Summerall, Iraq, Permanent Orders: * Number 162-18, dated 10 June 2004, awarded the applicant the ARCOM for meritorious service on 1 June 2004 * Number 287-10, dated 13 October 2004, awarded him the ARCOM (1st Oak Leaf Cluster) for meritorious service from 10 February 2004 to 9 February 2005 4. He reenlisted in the RA on 24 December 2004 for a period of 4 years. 5. On 20 June 2005, the applicant received nonjudicial punishment (NJP) for, at or near Warner Barracks, Germany, between on or about 4 March 2005 and 4 April 2005, wrongfully using a controlled substance (marijuana). His punishment was reduction to the grade of private (E-2); forfeiture of $692; restriction for 45 days; extra duty for 45 days, and a verbal admonition. 6. A DD Form 2329 (Record of Trial by Summary Court-Martial (SCM)) and DA Form 4430 (Department of the Army Report of Result of Trial) show the Commander, 1st Battalion, 33rd FA, convened a preliminary hearing on 3 November 2005. At the hearing, the applicant did not object to trial by SCM. a. He pled guilty to and was found guilty of violation of the Uniform Code of Military Justice (UCMJ) – * Article 86: Charge 1, failing to go at the time prescribed to his appointed place of duty on 30 September 2005 * Article 91, Charge II – * Specification 1, being disrespectful in language toward a superior noncommissioned officer (NCO) on 28 July 2005 * Specification II, being disrespectful in deportment toward a superior NCO on 28 July 2005 * Article 112a, Charge III – * Specification I, wrongfully using a Schedule I controlled substance (marijuana) between 15 June 2005 and 15 July 2005 * Specification 2, wrongfully using a Schedule I controlled substance (marijuana) between 2 September 2005 and 2 October 2005 * Article 134, Charge IV, wrongfully communicating a threat to a superior NCO on 28 July 2005 b. On 3 November 2005, he was sentenced to reduction to private (E-1), forfeiture of $692 for one month, and confinement for 30 days. c. On 7 November 2005, the SCM Convening Authority approved the sentence and ordered it executed. 7. On 28 November 2005, the applicant's company commander notified him that he was recommending him for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c, based on commission of a serious offense. a. The reasons for his proposed action were the applicant wrongfully used marijuana, disrespected an NCO, and threatened an NCO. b. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending he receive an UOTHC discharge. 8. Following the notification, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. a. He unconditionally waived consideration of his case by a board of officers. b. He waived a personal appearance before an administrative separation board. c. He indicated that he would not submit statements in his own behalf. d. He acknowledged that he understood he could receive a general, under honorable conditions or an UOTHC discharge, and that he may expect to encounter substantial prejudice in civilian life in the event either type of discharge was issued to him. e. The applicant and counsel (a staff judge advocate officer) each placed their signature on the document. f. The applicant's company commander recommended that the applicant be separated from the U.S. Army with an UOTHC discharge and that he not be transferred to the Individual Ready Reserve (IRR). g. The battalion commander and DIVARTY commander both recommended approval of the applicant's separation for misconduct based on commission of a serious offense with an UOTHC discharge. (1) LTC P___ D. D____, Commander, 1st Battalion, 33rd FA, recommended that the applicant not be transferred to the IRR. (2) COL W___ G____, Commander, DIVARTY, wrote to the separation authority "[the applicant] is unfit for continued service and should be separated immediately." 9. On 9 January 2006, a military psychiatrist completed a mental status evaluation of the applicant that shows: * the applicant's behavior was normal, mood or affect unremarkable, thinking process clear, thought content normal, memory good, concentration good, and energy level normal * he met the Army retention standards * there was no psychiatric disease, defect, or psychiatric findings to warrant disposition through medical channels * he was cleared for any administrative action deemed appropriate by command 10. On 25 January 2006, Major General K___ W. H____, Commanding General, 1st Infantry Division (the separation authority), approved the recommendation for discharge of the applicant and directed separation UP AR 635-200, paragraph 14-12c, with an UOTHC discharge and directed that the applicant not be transferred to the IRR. 11. A review of the applicant's separation action shows the signatures of the company commander, battalion commander, DIVARTY commander, and division commander on their correspondence recommending and/or approving the action. 12. The applicant's DD Form 214 shows he entered active duty this period on 13 June 2002 and he was discharged UOTHC on 28 January 2006 UP AR 635-200, paragraph 14-12c(2). He had completed 3 years, 6 months, and 21 days of net active service during this period. It also shows in: * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the – * ARCOM (2nd Award) * Army Achievement Medal * Meritorious Unit Commendation * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Overseas Service Ribbon * item 18 (Remarks) – * Period of Delayed Entry Program: 18 May 2002 – 12 June 2002 * Selective Reenlistment Bonus Paid: $8,601.08, 16 February 2005 * Service in Iraq: 10 February 2004 – 8 March 2005 * Member Has Completed First Full Term of Service 13. The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and a change to the narrative reason for separation. On 12 December 2007, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable and denied the applicant relief. 14. In support of his application the applicant provides the following additional documents: a. Two DA Forms 638 that show, in pertinent part: (1) Headquarters, 1st Battalion 33rd FA, Permanent Order 134-72, undated, awarded him the Army Achievement Medal for meritorious achievement from 1 February 2003 to 5 April 2003. (2) Headquarters, 1st Infantry DIVARTY, Permanent Order 162-18, dated 12 June 2004, awarded him the ARCOM for meritorious achievement on 1 June 2004. b. A DD Form 256A that shows the applicant was honorably discharged from the U.S. Army on 23 December 2004. c. An Enlisted Record Brief, dated 25 October 2005, that offers a summary of personal and professional information pertaining to the applicant. d. A copy of a memorandum to the Commander, DIVARTY, undated, that shows the battalion commander recommended approval of the applicant's separation UP AR 635-200, paragraph 14-12c, with an UOTHC discharge. e. A draft copy of a DIVARTY memorandum pertaining to the applicant's separation UP AR 635-200, paragraph 14-12c. The document is undated, not completed, and not signed. f. A letter from J___ A. P____, dated 30 November 2014, who served as the battalion's logistics officer. He stated that the applicant served in support of Force Protection and Captured Enemy Ammunition missions and conducted himself with professionalism above that expected of his rank. He offered his personal endorsement of the applicant's work ethic. g. Notice of Disagreement, undated, that shows the applicant provided reasons to the VA for his disagreement with denial of upgrade of the character of service of his discharge and denial of medical benefits. He stated that he served honorably from 13 June 2002 to 25 December 2005. He noted the VA granted him benefits related to a home loan, small business loan, student loan reimbursements, educational, and burial benefits; however, it has continually denied him healthcare at VA facilities. He demanded review of his claim. REFERENCES: 1. Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), Article 112a (Wrongful use, possession, etc., of controlled substances) shows, in pertinent part, any person subject to this chapter who wrongfully uses, possesses, manufactures, or distributes a substance described in this subsection shall be punished as a court-martial may direct, as provided in the Table of Maximum Punishment. The substances referred to in the subsection are: opium, heroin, cocaine, amphetamine, lysergic acid, diethylamide, methamphetamine, phencyclidine, barbituric acid, marijuana, and any compound or derivative of any such substance. 2. AR 635-200 sets forth the authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. (Abuse of illegal drugs is a serious offense.) A discharge UOTHC is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record. a. 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. b. Chapter 3, 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. 3. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It contains item-by-item instructions for completing the DD Form 214. It shows item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks. a. For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)." b. However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." DISCUSSION: 1. The applicant contends, in effect, that his discharge should be upgraded because he served honorably and with distinction during the period of his initial enlistment, his discharge was based on one isolated incident of misconduct, and his separation action was not properly processed and approved. 2. The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA. a. The applicant enlisted in the RA on 13 June 2002 and he reenlisted in the RA on 24 December 2004. b. An Honorable Discharge Certificate was issued to show his honorable service through 23 December 2004. However, a DD Form 214 was not authorized to be issued when he was discharged to reenlist in the RA. c. For Soldiers who have multiple continuous enlistments and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment. d. Item 18 of the applicant's DD Form 214 does not contain such an entry. 3. The evidence of record shows the applicant's separation action contains the signatures of each of the commanders in the chain of command, along with their recommendation for separation of the applicant with an UOTHC character of service and that he not be transferred to the IRR. In addition, the division commander (and separation authority in this case) signed the document approving the applicant's separation UP AR 635-200, paragraph 14-12c, with an UOTHC character of service and that he not be transferred to the IRR. 4. The applicant's administrative discharge UP AR 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense (use of illegal drugs) was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the reason for and type of discharge directed were appropriate and equitable. 5. During the period of service under review the applicant received NJP for wrongfully using marijuana. Then, at a SCM, he was found guilty of two specifications of wrongfully using marijuana, wrongfully communicating a threat to a superior NCO, being disrespectful in both language and deportment toward a superior NCO, and failing to go at the time prescribed to his appointed place of duty. He was also reduced to private (E-1) and he completed about one-fourth of his 4-year reenlistment obligation. a. The evidence of record fails to support the applicant's contention that his discharge was based on one isolated incident of misconduct. b. The applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit either an honorable discharge or a general, under honorable conditions discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015915 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015915 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2