IN THE CASE OF: BOARD DATE: 16 DECEMBER 2016 DOCKET NUMBER: AR20160000472 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 DECEMBER 2016 DOCKET NUMBER: AR20160000472 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 earlier requests for: a. upgrade of his general discharge to honorable; b. removal of three DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 27 February 2007, 22 April 2008, and 14 August 2008, from his Official Military Personnel File (OMPF); c. amendment of his narrative reason for separation; and d. a personal appearance before the Board. 2. The applicant states: a. It's been over 7 years since he was discharged from the Army. He received three nonjudicial punishments (NJPs) within a 15-month period. He has learned from his past mistakes and errors and takes 100-percent responsibility for all of his actions. b. He has accomplished so much since his discharge. He completed his education, maintained gainful employment, and has a clean criminal background. He is a much better man and father. c. In 2009, he requested a discharge upgrade and his request was denied. Knowing what he knows now, he should have waited at least 5 years after his discharge before applying for a discharge upgrade. He was told his discharge would be automatically upgraded in 6 to 12 months, but it was not. d. He was a young man who made mistakes. He was never granted a personal appearance and he would like to appear before the Board at his own expense. He supports seven children and two stepchildren. He strongly believes the Board would recommend an honorable discharge based on his military and civilian records and achievements. e. He would also like the Board to change his narrative reason for separation to "Early Separation" or "Temporary Disable Retired" (apparently he means Temporary Disability Retired List). f. He is currently working as a case manager for people on parole. He refers clients to drug and alcohol treatment to help them better themselves and their community. g. He has no regrets for joining the Army, it was the best decision he ever made and would not change it. He wishes his unit had moved him after his second NJP in 2008 as he requested. He went from a specialist to a sergeant back to a specialist, then to a private first class in less than a year. A lot of things could have been done differently by him and his unit. He served his country with honor, distinction, and selfless service. This is very important to him, his family, and friends. h. He would like all three NJPs removed from his military records because they are holding him back from progressing as a civilian. The NJPs should have never happened due to the fact he did not know the whole process and he did not have any evidence or support at the time. The NJPs were minor mistakes and misjudgment on his part and could have been taken care of differently. i. His 2011 board decision states he should not have received his first NJP in 2007, but it was never taken off his military records and still comes up when he applies for State and Federal jobs. He feels he is being judged twice for his past mistakes. j. His first NJP in 2007 for unlawful wear of an award was unjust and should have never happened since he was properly awarded the Army Commendation Medal (ARCOM) for his deployment in Iraq in 2004/2005. He received his second NJP for leaving his post and falling asleep in a portable toilet. He requested to be moved from the night shift to the day shift due to his sleeping problems, but it was ignored by his chain of command. He received his last NJP because he was blown up by an improvised explosive device by enemy forces on 28 May 2008. He sustained injuries (traumatic brain injury and concussion) due to the attack and still suffers to this day. k. He never received the appropriate certificates for award of the ARCOM and ARCOM with "V" Device, only the DA Forms 638 (Recommendation for Award). His request for award of the Purple Heart never went past the battalion level. He was told he needed more information, but the driver of the vehicle was also hurt and sustained a concussion and did not remember what happened. His award of the Purple Heart was later approved. 3. The applicant provides: * two applications * self-authored letter, dated 24 December 2015 * awards and decorations * college transcripts, degrees, and certificates * letters of recommendation * service personnel records * Department of Veterans Affairs (VA) letters, documentation, and medical records * certificates of training * character-reference letters * correspondence from a Member of Congress 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 AR20120022166 on 3 September 2013. 2. The applicant's arguments are new evidence that was not previously considered by the Board and which warrants consideration at this time. 3. The applicant was born on 7 May 1982. He enlisted in the Regular Army on 12 February 2003 for a period of 4 years. He completed his training and was awarded military occupational specialty 42A (human resources specialist). He served in Iraq from 11 November 2004 to 1 April 2005. He deployed to Iraq again on 22 May 2006. On 3 October 2006, he was honorably discharged for immediate reenlistment. He reenlisted on 4 October 2006 for a period of 6 years. He returned to the United States on 11 November 2006. 4. The DA Form 2627, dated 27 February 2007, shows while he held the rank of specialist, he accepted NJP under Article 15 of the UCMJ for wrongfully and without authority wearing on his uniform an Army Commendation Medal, being derelict in the performance of his duties, disobeying a lawful order, and making a false official statement. He elected not to appeal the imposed punishment. 5. He deployed to Iraq on 2 December 2007 and he was promoted to sergeant on 1 March 2008. 6. The DA Form 2627, dated 22 April 2008, shows while he held the rank of sergeant, he accepted NJP under Article 15 of the UCMJ for leaving without authority from his Iraq duty section with the intent to abandon and leaving his sentinel post before he was relieved. The imposing commander directed filing the DA Form 2627 in the restricted folder of his OMPF. He elected not to appeal the imposed punishment. 7. The DA Form 2627, dated 14 August 2008, shows while he held the rank of specialist, he accepted NJP under Article 15 of the UCMJ for uttering a document with the intent to defraud (making a false statement). He elected not to appeal the imposed punishment. 8. On 1 September 2008, a bar to reenlistment was imposed against him. 9. On 12 September 2008, he underwent a separation physical examination and was cleared for separation. 10. A Medical Command Form 4038 (Report of Behavior Health Evaluation), dated 25 September 2008, shows the psychologist determined he was mentally responsible and he had the mental capacity to understand and participate in any administrative action deemed appropriate by his commander. The psychologist stated that while he appeared to exhibit some symptoms of depression in addition to sleep problems at the time of his past violations of the UCMJ, this does not account for acts of misconduct that led to numerous disciplinary actions against him. 11. He returned to the United States on 11 November 2008. 12. Discharge proceedings were initiated against him for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b. His unit commander cited the following reasons for the applicant's separation action: * failing to go to his appointed place of duty on several occasions * dereliction of duty * forgery * leaving his appointed post as a sentinel * disobeying an order * wrongfully wearing an award * making a false official statement 13. On 9 October 2008, he consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge. He elected to submit a statement in his own behalf. In summary, he admitted to making mistakes and asked for a second chance. 14. The separation authority approved the recommendation for discharge due to a pattern of misconduct and directed the issuance of a general discharge. 15. On 12 December 2008, he was discharged under honorable conditions (general) for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b (patterns of misconduct). He completed 5 years, 10 months, and 1 day of net active service. 16. His DD Form 214 shows in: * item 25 (Separation Authority) - Army Regulation 635-200, paragraph 14-12b * item 26 (Separation Code) - JKA * item 28 (Narrative Reason for Separation) - Pattern of Misconduct 17. A review of the restricted folder of the applicant's OMPF on the Interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the DA Form 2627 dated 22 April 2008. His OMPF does not contain the DA Forms 2627 dated 27 February 2007 and 14 August 2008. 18. On 8 May 2009, the Army Discharge Review Board denied the applicant's request for a discharge upgrade. 19. On 18 January 2011, the ABCMR denied the applicant's request to upgrade his general discharge to honorable. 20. U.S. Army Human Resources Command (HRC) Permanent Orders 336-12, dated 2 December 2011, awarded him the Purple Heart for wounds received in action on 29 April 2008 in Iraq. 21. On 3 September 2013, the ABCMR denied the applicant's requests to upgrade his general discharge to honorable, to remove three DA Forms 2627 from his OMPF, and amend his narrative reason for separation. 22. On 8 December 2015, the ABCMR denied his request for reconsideration to upgrade his discharge to honorable and to remove three DA Forms 2627 from his OMPF. As a new issue, the ABCMR denied his request for a personal appearance. 23. He provided a letter from the VA, dated 21 December 2015, showing his combined service-connected evaluation is 100 percent. 24. He provided a self-authored letter, dated 24 December 2015, stating: a. He believes his discharge is inequitable, improper, and unjust because he was not given a change to move to a different unit once he was demoted from sergeant to specialist in 2008. b. In 2008, he was blown up by an improvised explosive device in Iraq and received a concussion, traumatic brain injury, memory loss, and other health issues. Paperwork was prepared but was not submitted to the chain of command and he never received any awards for his actions on that day. Other Soldiers received the ARCOM for valor for their actions on 29 April 2008 and he still has not received his ARCOM with "V" Device or his end-of-tour ARCOM. c. He requested a transfer, but this never happened. He was rushed out of the Army and did most of his discharge medical examinations in Iraq where there was inadequate machines and services. To this day, he is still dealing with medical conditions/issues. He cannot get a decent job because of his discharge. Some people look at him as if he is a felon or criminal. d. It took almost 4 years after his discharge to receive his Purple Heart from HRC. He submitted the same documents and sworn statement that he had back in 2008. At the end of 2008 while talking to his chain of command about the status of his awards, he spoke with a sergeant first class and asked her if she could rewrite or add to her sworn statement. She said she would, but since she worked the night shift and he worked during the day, it was very hard to catch up with her. He told her he was going to rewrite her sworn statement and add what was missing and what she had told him happened since he didn't remember because he was knocked out. His first sergeant approached the sergeant first class and asked her if she wrote the new sworn statement and she said no and that is when he received his third NJP. He believes if his unit would have followed policy and procedures and their jobs correctly, he would never have received his last NJP. He received all three NJPs in the same unit during a 15-month period. e. His request for award of the Purple Heart was approved by HRC and if his unit had submitted the same paperwork he submitted to HRC, he would not have received the NJP for forgery. He was not treated fairly. His mistakes were not as bad as others, but he was treated much differently. He deployed to Iraq three times and spent over 2 years of his life fighting for this great country and almost gave his life in combat. 25. He provided numerous letters of recommendation and character-reference letters attesting to his professionalism, integrity, and good character. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. a. Chapter 3 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 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, pattern of misconduct, and commission of a serious offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 2. Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons. The reason for discharge based on SPD code JKA is misconduct and the regulatory authority is Army Regulation 635-200, paragraph 14-12b. 3. The U.S. Army has never had a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable. 4. Army Regulation 15-185 (ABCMR) governs operation of the ABCMR. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. a. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-36 states that when punishment is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action would be recorded on a DA Form 2627. (1) For Soldiers in pay grade E-4 and below (prior to punishment), the original DA Form 2627 will be filed locally in unit NJP or unit personnel files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court- martial convening authority (GCMCA), whichever occurs first. For these Soldiers, the imposing commander should annotate item 5 of DA Form 2627 as "Not Applicable (N/A)." When the transfer of a Soldier to a new GCMCA jurisdiction is for the purpose of receiving medical treatment, the DA Form 2627 will accompany the Soldier to the new GCMCA. The 2-year rule will apply in this situation. (2) For all other Soldiers, the original DA Form 2627 will be sent to the appropriate custodian for filing in the Army Military Human Resource Record. The decision to file the original DA Form 2627 on the performance folder or the restricted folder of the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by any superior authority. However, the superior authority cannot direct that a DA Form 2627 be filed in the performance folder if the imposing commander directed it to be filed in the restricted folder. The imposing commander's filing decision will be indicated in item 5 of the DA Form 2627. c. Paragraph 3-43 contains guidance for the transfer or removal of records of NJP from the OMPF. It states applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the ABCMR. It further indicates there must be clear and compelling evidence to support removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the ABCMR. 6. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 7. Appendix B (Documents Authorized for Filing in the OMPF and/or interactive Personnel Electronic Records Management System (iPERMS) of Army Regulation 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the DA Form 2627 will be filed in the restricted folder. DISCUSSION: 1. The applicant contends he was a young man. He was almost 21 years of age when he enlisted and he successfully completed training. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. His post-service accomplishments are commendable. However, good post- service conduct alone is normally not a basis for upgrading a discharge. 3. Although he contends he was informed that his discharge would automatically be upgraded to honorable in 6-12 months, a discharge upgrade is not automatic. Each case is decided on its own merits. 4. The letters of recommendation and character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded. 5. His administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 6. His record of service during his last enlistment included a bar to reenlistment and three NJPs. As a result, his record of service was not so meritorious as to warrant an honorable discharge. 7. Although a discharge under other than honorable conditions is normally considered appropriate for the authority and reason for his discharge, he was issued a general discharge under honorable conditions. 8. The evidence shows he accepted NJP under the provisions of Article 15, UCMJ, on 22 April 2008 for leaving without authority from his Iraq duty section with the intent to abandon and leaving his sentinel post before he was relieved. The imposing commander directed filing the DA Form 2627 in the restricted folder of the applicant's OMPF. 9. There is no evidence that this DA Form 2627 was improperly imposed. The DA Form 2627 imposed on 22 April 2008 is properly filed in the applicant's OMPF. 10. His request to remove DA Forms 2627, dated 27 February 2007 and 14 August 2008, from his OMPF was noted. However, these DA Forms 2627 are not contained in his OMPF in accordance with the governing regulation. 11. Although he contends the DA Forms 2627 come up when he applies for State and Federal jobs, his military records only contain the DA Form 2627 imposed on 22 April 2008. 12. His request to amend his narrative reason for separation to "Early Separation" or "Temporary Disability Retired List" was noted. However, the evidence shows he was discharged for a pattern of misconduct. His narrative reason for separation is correct and was applied in accordance with regulatory guidance. 13. His request for a personal appearance hearing was considered. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160000472 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000472 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2