BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160000463 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: 24 August 2017 DOCKET NUMBER: AR20160000463 BOARD DETERMINATION/RECOMMENDATION: 1. 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20130022374, dated 9 September 2014. 2. With regard to the new issue, 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 changing his narrative reason for separation. _____________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: 24 August 2017 DOCKET NUMBER: AR20160000463 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 reconsideration of his prior request for an upgrade of his general discharge under honorable conditions. As a new issue he requests a change to the narrative reason for his separation. 2. The applicant states: a. His discharge should be upgraded due to error as well as an injustice toward him. He was discharged due to a pattern of misconduct, but there was no pattern of misconduct. He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) based on lies that his sergeant reported to his commander. b. It was said that he left the state and flew to Kansas City, MO, yet he was in every formation and accounted for. There was no proof he left Fort Bliss, TX, for Kansas City, MO. Punishment for this was based on the claims of his sergeant, who said he called the airlines who confirmed the applicant took a flight. c. There was also a civilian incident involving him where he was held in confinement. He was later released and acquitted of all charges against him. During his time in confinement, an administrative separation board was scheduled for his involuntary discharge. When he was acquitted of all charges and released from confinement in February 2013, Major General (MG) P____ terminated his administrative separation board proceedings. d. Soon afterward, new administrative separation proceedings were initiated based on NJP he accepted on 29 March 2012, which was over 11 months old at the time and had not been included in the initial administrative separation board proceedings. It was merely added to the new board proceedings as a means of involuntarily separating him. e. When he was released back to his unit from confinement, he did not receive any rehabilitation at all, which he did request as a means of bettering himself, but no efforts were taken to help him. He was never given a reasonable amount of time to correct his deficiencies because as soon as he was released from confinement the discharge paperwork was started when he should have been given an opportunity for rehabilitation. The actions of his leadership were not justifiable. It has been nearly 3 years and he still has a strong desire to serve his country. 3. The applicant provides: * U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), dated 17 January 2012 * Combined Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) and Line of Duty Investigation, dated 9 March 2012 * DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 1 April 2012 * ElpasoTimes.com article titled, "Jury Finds Former Fort Bliss Soldier Not Guilty of Murder," printed on 21 February 2013 * DA Form 4856 (Developmental Counseling Form), dated 15 March 2013 * discharge packet * electronic mail correspondence, dated 9 April 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period 23 September 2008 through 22 April 2013 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130022374 on 9 September 2014. 2. The applicant enlisted in the Regular Army on 23 September 2008. He served in Afghanistan from 22 June 2010 through 15 May 2011. 3. A CID ROI, dated 17 January 2012, shows he was under investigation for the willful discharge of a firearm and aggravated assault that occurred on 15 January 2012 at a night club in El Paso, TX. The ROI shows the applicant heard someone shout "Gun, Gun!" during a verbal altercation in the parking lot adjacent to the club, after which he retrieved his .40 caliber pistol and fired approximately five to six rounds in the air. He did not recall if he heard shots first, then fired, or if he fired his own weapon before he heard shots. The applicant was struck by return gunfire, then transported to William Beaumont Army Medical Center where he was treated for a non-life threatening gunshot wound to the left rib. Private B____, an innocent bystander not involved in the gunfire, suffered from a gunshot wound through the back to the upper chest and was pronounced dead at the William Beaumont Army Medical Center on the same day. 4. A Combat Aviation Brigade, 1st Armored Division, memorandum, dated 9 March 2012, subject: Combined Army Regulation 15-6 and Line of Duty Investigation in the Death of Private Two B____, D____ W____, shows Private B____'s death that occurred on 15 January 2012 was found to be in the line of duty. 5. Records indicate he accepted NJP under the provisions of Article 15 of the UCMJ on 1 April 2012 for making a false official statement to Captain M____ and First Sergeant K____ with the intent to deceive, claiming to have not flown to Kansas City, MO, on 7 March 2012. This statement was later confirmed by American Airlines to have been false. 6. An ElpasoTimes.com article titled, "Jury Finds Former Fort Bliss Soldier Not Guilty of Murder," printed on 21 February 2013, states the applicant was acquitted of murder charges in the shooting deaths of two individuals which took place on 15 January 2012, following a confrontation between a group of his friends and friends of a co-defendant. 7. A DA Form 4858, dated 15 March 2013, shows he received event-oriented counseling for disorderly conduct on that date. He signed the form on 15 March 2013, showing he disagreed with the information presented. He stated when he took weekend leave in February 2012, it was because his command refused to send him on leave. He was not able to take Christmas or Thanksgiving leave prior to the traumatic incident he went through and wanted to see his daughter. When the chair was thrown in the dining facility, it was out of frustration. He had not been receiving the support he needed from his command. He asked for a rehabilitative transfer on several occasions, but nothing was done. 8. On 27 March 2013, his immediate commander initiated discharge action against him for a pattern of misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12b. The memorandum initiating separation action stated the reasons for the proposed action were his receipt of NJP for making a false statement to his chain of command and for engaging in disorderly conduct at a nightclub on 15 January 2012. 9. A legal review of the discharge action, dated 8 April 2013, found the separation packet to be legally sufficient to support his separation for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b. 10. Subsequent to consultation with the applicant, his defense counsel at Fort Bliss, TX, provided the applicant's response and rebuttal to the Army Regulation 635-200, paragraph 12-12b, administrative separation action on 9 April 2013. It states: a. The applicant had an open door meeting with MG P____ on 10 April 2013 and requested that the approval authority not take final action until MG P____ had an opportunity to meet with the applicant. b. The applicant requested a rehabilitative transfer from his current unit to another unit on Fort Bliss, TX, or to another installation. This rehabilitative transfer was necessary because the applicant needed a fresh start. c. The applicant was facing an administrative separation board under the provisions of Army Regulation 635-200, paragraph 14-12c, based on his 6 April 2012 arrest by civilian authorities for two counts of murder. This was the only stated basis of the separation action. This administrative separation board was scheduled for 11 February 2013, but was postponed at the request of the applicant because he needed to prepare for his civilian trial. d. On 21 February 2013, the applicant was fully acquitted of all charges brought by the civilian authorities. His administrative separation board proceedings were then terminated by MG P____ on 13 March 2013, subsequent to his acquittal in civilian court. e. On 18 March 2013, the applicant's unit initiated new administrative separation proceedings. The new administrative separation proceedings were based on NJP under Article 15 he had received nearly 1 year prior on 20 March 2012 and NJP he received based on engaging in disorderly conduct on 15 January 2012, the incident which made the basis of the civilian case of which he was fully acquitted. If these acts had been of any concern to the unit or had been deemed of any importance, the unit could have included these acts in the prior separation proceedings initiated on 11 February 2013. The unit did not do so. f. Since his acquittal of the civilian charges, the applicant has been subjected to actions by his unit that call into question the unit's impartiality and fair treatment of him. The unit interfered with the applicant's ability to meet with his legal counsel. He was denied an Army Emergency Relief loan needed because he had young dependents, which was initially approved in writing by his immediate commander, then the approval was withdrawn because those higher in the chain of command would not agree to support such a loan. He was additionally not given proper recovery time after being on charge of quarters duty and was instead taken to clear the installation so his separation from the Army could be expedited. g. The applicant was in civilian confinement for almost 1 year on charges for which he was ultimately acquitted. He requested an opportunity to put those incidents behind him and soldier on. He could not do so in his current unit because of the way he was being treated, thus respectfully requested a rehabilitative transfer. 11. On 9 April 2013, the separation authority approved the recommended discharge for a pattern of misconduct under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a general discharge under honorable conditions. 12. On 22 April 2013, he was discharged under honorable conditions (general) for patterns of misconduct under the provisions of Army Regulation 635-200, chapter 14. His DD Form 214 shows he completed 4 years and 7 months of net active service during this period. 13. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge. On 15 November 2013, the board determined his discharge was both proper and equitable and denied his request. 14. He subsequently applied to the ABCMR, requesting an upgrade of his discharge and change to his reentry eligibility code. On 9 September 2014, the board determined the overall merits of the case were not sufficient as a basis for correcting his records and denied his request. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, 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 under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. 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. c. 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. DISCUSSION: 1. The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time pertaining to patterns of misconduct. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. Although the applicant was acquitted of two charges of murder in civilian court, this acquittal of murder does not suggest he did not engage in disorderly conduct on the night of 15 January 2012 by firing multiple rounds from a .40 caliber pistol at a nightclub, leading to his subsequent arrest and confinement by civilian authorities. 3. His records reflect a pattern of misconduct in his acceptance of NJP under the UCMJ for making a false statement to his chain of command and for engaging in disorderly conduct at a nightclub on 15 January 2012. Based on his record of indiscipline, his service failed to meet the standards of acceptable conduct and performance of duty for Army personnel required for a fully honorable characterization. There is no evidence of record to suggest his narrative reason for discharge should not reflect the misconduct for which he was discharged. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000463 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000463 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2