BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150015929 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 BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150015929 BOARD DETERMINATION/RECOMMENDATION: 1. 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 his DD Form 214 the Army Good Conduct Medal (1st Award). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. ____________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: AR20150015929 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 (UOTHC) discharge to a general, under honorable conditions discharge (GD). 2. The applicant states: a. Following an initial period of continuous of honorable service, his second period of service resulted in his request for separation in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and issuance of a UOTHC discharge. b. Army Regulation 635-200 includes the following: * Paragraph 3-5c states the characterization of a discharge should be “based on a pattern of behavior other than an isolated incident” * Paragraph 3-5e(3) states that discharge characterization must accurately reflect the nature of service performed (based on the overall period of service) * Paragraph 3-7b states that a conviction by court martial does not automatically rule out the possibility of awarding an honorable discharge (HD) * Paragraph 3-7c states an HD may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. * Paragraph 3-8b(3) states that decorations received during prior service may be considered when characterizing the current enlistment period * Paragraph 10-8a states, although an UOTHC discharge is common, the separation authority may direct a GD if such is merited by the Soldier’s overall record c. His Army Good Conduct Medal (AGCM) awarded during the enlistment period in question on 12 June 2000, for exemplary behavior, efficiency and fidelity in active federal military service, warrants consideration to determine an upgrade of his UOTHC discharge. d. The absence of the AGCM from his DD214 (Certificate of Release or Discharge from Active Duty) as well as the his overseas service demonstrates his military record does not fully represent the merits of his service and further shows the characterization of his service is not based on his overall period service in accordance with Army Regulation 635-200. e. The missing AGCM from his DD From 214 provides reasonable doubt that all of his awards are reflected in his record. f. Army officials awarded him the Humanitarian Service Award (HSM) and Joint Meritorious Unit Award (JMUA) for his participation in humanitarian operations in El Salvador and Nicaragua following Hurricane Mitch while assigned with 1st Battalion, 502 Infantry Regiment. g. He received three awards of the Army Achievement Medal (AAM). He received: * the first while assigned with Company A, 1st Battalion, 506th Infantry, Camp Giant, Korea * the second ws an impact AAM award at his guard station in San Ramon, Nicaragua, while serving with 1st Battalion, 506th Infantry Regiment * the third for outstanding performance in a squad competition while assigned with the 1st Battalion, 4th Infantry Regiment, in Hohenfels, Germany h. He knows the burden to prove his entitlement to awards lies with himself, and therefore relies on the absence of his AGCM and OSR from his record DD Form 214 to support his assertion that other awards are also missing from his record. i. He received his current discharge characterization as a result of departing absent without leave (AWOL) for more than 30 days and, in realizing this huge mistake, would go back in time and make better choices if he could. j. In his efforts to repair the damage caused, he works hard, earned his Bachelor of Science degree in psychology in 2012 from Arkansas State University, and is currently enrolled in a master’s degree program for college student personnel services at his alma mater. k. He has been married to his wife for almost 9 years and they have two daughters who they adopted four years ago. l. Since his discharge from the Army 13 years ago, he’s had a very difficult time obtaining suitable employment, and as he gains education and experience, it becomes increasingly difficult to overcome the blot he created as a result of the poor choices he made years ago. m. The punitive consequences of his mistake are significant, and in light of the evidence he presents in his application he prays he will be granted an upgrade of his discharge to GD or higher. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * discharge packet (4 pages) * self-authored statement * DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus) * DA Form 3286 (Statements for Reenlistment) * DD Form 4/2 (Enlistment/Reenlistment Document) (page 2) * AGCM Order * Bachelor of Science Diploma 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 12 February 1997, and served until he was honorably discharged on 31 May 1999 for the purpose of immediate reenlistment. He completed 2 years, 3 months, and 18 days of creditable active duty service. 3. On 1 June 1999, he reenlisted in the RA. His record shows he held military occupational specialty 11B (Infantryman). 4. His Official Military Personnel File (OMPF) contains Detachment D, 38th Personnel Service Battalion, Permanent Orders Number 164-007, dated 12 June 2000. It announced his award of the AGCM for the period 12 February 1997 to 11 February 2000 and shows he was assigned to Headquarters and Headquarters Company, 1st Battalion, 4th Infantry Battalion, APO AE 09173 (a unit stationed in Europe). 5. His OMPF contains no other documents to show he was ever assigned for duty in an overseas area or that provides the dates he served in an overseas location. His OMPF does not include any additional orders or documents showing he was awarded or recommended for any other awards, with the exception of the AGCM and Army Service Ribbon (ASR). 6. The applicant’s OMPF includes two DA Forms 4187 (Personnel Action) dated 20 July 2001 that show he departed AWOL on 20 June 2001 and was dropped from the rolls (DFR) on 20 July 2001. 7. On 20 July 2001, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86, Uniform Code of Military Justice (UCMJ), by being AWOL from on or about 20 June 2001 to on or about 10 January 2002. 8. On 17 January 2002, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He indicated he had not been subjected to coercion whatsoever by any person and he was making the request of his own free will. He elected not to submit a statement on his own behalf. 9. In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UOTHC discharge. 10. On 6 June 2002, the separation authority approved the applicant's request for discharge and directed discharge under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge. 11. On 24 June 2002, the applicant was discharged accordingly. He completed a total of 4 years, 9 months, and 19 days of net active service with 203 days of lost time. 12. On 19 February 2003, a DD Form 215 was issued to correct item 18 (Remarks) of the applicant’s DD Form 214 to add the entry “continuous honorable active service from 12 Feb 97 until 31 May 99.” 13. On 5 March 2003, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and voted to deny his request for an upgrade. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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 HD or GD is authorized, a discharge UOTHC is normally considered appropriate. b. Paragraph 3-7a provides that an HD 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 GD 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 HD. 2. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army (DA) policy, criteria, and administrative instructions concerning individual and unit military awards. a. Chapter 4 states the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service. b. Paragraph 2-22 states the HSM is awarded to members who, after 1 April 1975, distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature. A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operations and within specified time limits, and must provide evidence that substantiates direct participation. c. Paragraph 3-19 states the AAM is awarded to any member of the Armed Forces of the United States who, while serving in a noncombat area on or after 1 August 1981, distinguished himself or herself by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required 3. Department of Defense Instruction 1348.33 (Military Awards Program) states the JMUA was authorized by the Secretary of Defense on 10 June 1981. It is awarded to recognize joint units and activities for meritorious achievement or service superior to that which is normally expected. Qualifying achievements must be superior to that which is expected under conditions of combat with an armed enemy of the United States, a declared national emergency situation, or extraordinary circumstances and should be operational in nature. The JMUA may not be awarded to any Department of Defense activity which has received any other unit award for the same achievement or period of service. 4. Army Regulation 635-85 (Separation Processing and Documents) prescribes the separation documents prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It also established standardized policy for preparing and distributing the DD Form 214. It states to enter the total amount of service performed outside the continental United States during the period covered by the DD Form 214 in item 12 (Foreign Service). DISCUSSION: 1. The applicant contends his UOTHC discharge should be upgraded to a GD or HD and his DD Form 214 should be corrected to show the AGCM, 3 AAMs, HSM, JMUA, and his overseas service. 2. The evidence of record confirms the applicant’s continuous honorable active duty service from 12 February 1997 to 31 May 1999 as evidenced by his DD Form 215. Based on this service through 11 February 2000, Army officials awarded him the AGCM in official orders for his initial 3 years qualifying honorable service, as authorized by Army Regulation. The AGCM is not included among the list of awards shown on his DD Form 214. 3. As it relates to the applicant’s request for an upgrade of his UOTHC discharge, the evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge in lieu of trial by court-martial to avoid possible incarceration and a punitive discharge. 4. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case. The characterization of service he received was commensurate with the reason for his discharge. 5. Post-service conduct is not normally a basis for changing a characterization of service. 6. The evidence does not include any orders or other documents showing he was awarded or was otherwise eligible for the HSM, JMUA, and three AAMs during his active duty service. 7. The evidence of record supports the applicant’s claim of overseas assignment as evidenced in his AGCM orders. However, there is no documentary evidence showing the dates he served overseas or the specific overseas locations. Absent this information, the length of his overseas service cannot be determined. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015929 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015929 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2