BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160000715 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: 12 September 2017 DOCKET NUMBER: AR20160000715 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: 12 September 2017 DOCKET NUMBER: AR20160000715 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 correction of his record to upgrade his character of service from under honorable conditions (general) to honorable. 2. The applicant states: a. he could better his life if educational benefits were available to him. The defiance of certain orders from the leadership was due to plain and simple arrogance after his unit's deployment. b. his leadership seemed to praise his conduct before and during "war." c. he has handled his job with the utmost professionalism and he could not adjust because of how highly serious he took his job. It was basically his conduct based on decisions he made outside of his career in the Army. He traveled beyond the authorized 50-mile radius of his base. The way he felt after returning from Iraq was the culprit of his behavior. He had a sense of heroism, but his actions spoke more about his ego. He was young, but he guarantees his immaturity does not apply anymore. d. his discharge was inequitable because it was based on a series of somewhat minor infractions, e.g., uniform and grooming standards, and one instance of being outside a 50-mile radius of the base during increase in readiness level. These errors in judgement occurred after his deployment to Kuwait/Iraq. e. when he entered the service, he had a goal of successfully completing his term of enlistment that would enable him to further himself using his education benefit. However, after his tour in Kuwait/Iraq, everything changed. He lost enthusiasm, drive, and the will to follow. He questioned everything about the value of his efforts and leadership decisions. This ultimately resulted in a general discharge but without effort to counsel him, provide assistance, etc. 3. The applicant provides: * Character references * Photographs * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief 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 was born on 15 November 1983 and he enlisted in the Regular Army on 2 August 2001 at the age of 17. 3. His Enlisted Record Brief shows he was advanced to specialist/E-4 on 2 August 2003. 4. On 1 July 2004, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully traveling outside the 100-mile radius without an approved mileage pass. 5. His service record contains a DD Form 2329 (Record of Trial by Summary Court-Martial) that shows he was convicted by a summary court-martial on 23 March 2005 for disobeying an officer. His sentence consisted of a forfeiture of $823.00 pay for one month and confinement for 30 days. 6. On 8 June 2005, his company commander notified him of his intent to recommend him for discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, by reason of misconduct - pattern of misconduct. The commander indicated he was recommending the applicant receive a general, under honorable conditions discharge. 7. On 8 June 2005, he acknowledged receipt of the notification memorandum. He waived his right to legal counsel and 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 available to him. He elected not to submit statements in his own behalf and acknowledged that he could expect to encounter substantial prejudice in civilian life if issued a less than honorable discharge and he may be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged understanding he could make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading and that an act of consideration by the ADRB or the ABCMR did not imply that his discharge would be upgraded. He also acknowledged understanding he would be ineligible to apply for enlistment in the U.S. Army for a period of two years after discharge. 8. On 6 July 2005, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. The separation authority directed the issuance of a general discharge, and directed that the applicant not be transferred to the Individual Ready Reserve. 9. On 1 August 2005, he was discharged with a general character of service. He completed 3 years, 11 months, and 6 days of creditable active service with lost time from 23 March 2005 to 15 April 2005. 10. A DD Form 215 (Correction to DD Form 215) issued on 25 February 2016 amended his DD Form 214 to add the following entries: * Item 12f (Foreign Service): "0000 11 07" * Item 18 (Remarks): "Service in Kuwait from 20030215 thru 20040121" 11. He provided character references from former fellow Soldiers, former and present employers, and clients who stated the following: a. Former Sergeant/E-5 PM served with the applicant in Iraq from March 2003 to February 2004. He described the applicant's combat experience and the incident involving injury from a grenade explosion on a roof top in Bagdad. The applicant recovered from his injuries and continued with the rest of deployment. Their unit continued to experience daily offensive and defensive combat actions until their departure from Iraq in 2004. b. Former Platoon Leader, Captain DTP (Retired), stated the applicant served as an excellent Assistant Machine Gunner and outstanding Paratrooper. He described an incident in which the applicant moved into action against an enemy "technical vehicle" by engaging the vehicle with a Javelin Missile and scoring a direct hit. This action by the applicant blocked the road, did not allow other enemy traffic, and allowed the remainder of the battalion to accomplish the total mission. The applicant sustained wounds during an enemy attack and eventually received the Purple Heart. Captain DTP (Retired) stated the applicant continued to serve with absolute honor during countless foot patrols, raids, and other operations. c. Former Platoon Sergeant, First Sergeant CSP, was a Platoon Sergeant in Company A, 1st Battalion, 325th Airborne Infantry Regiment from November 2012 to October 2014. During this time the applicant was one of the paratroopers within his platoon. The applicant deployed with his platoon to Iraq in 2003 and participated in the invasion to kick off the Iraq campaign. The applicant and 4 other Soldiers got hit with a hand grenade while on a roof top in Bagdad. They were treated, returned to duty, and all 4 Soldiers received the Purple Heart for this incident. The applicant was always a good Soldier/paratrooper with no issues of service during the time serving with him. d. A Licensed Master Social Worker (LMSW) has known the applicant since 2014 and the applicant has amazingly reintegrated back into society after being in war. She has witnessed how the applicant gives back to the community, has goals to do even more in the future, and has a good head on his shoulders. She described the applicant as a wonderful massage therapist and person and has shown her nothing but kindness. e. Ms. VE knows the applicant as a friend, neighbor and client. The applicant is a respectful citizen and a reliable person. The applicant has strived to educate himself and pursue his love for massage therapy. f. A Licensed Massage Therapist has known the applicant since 2015 professionally and personally. She described the applicant as a person of good moral character who operates with integrity, is hard-working, dedicated, and never leaves a job unfinished. g. A Licensed Massage Therapist who met the applicant in October 2014 at a local Greek restaurant witnessed the applicant's ability to take orders, cook, serve, and clean the entire place on his own with no help. The applicant was described as hard-working, smart, very curious to learn, and meticulous. The applicant served his country, fought a war, survived a grenade attack, and was awarded the Purple Heart. 12. His service record does not indicate he applied to the Army Discharge Review Board (ADRB) within that board's 15-year statute of limitations. REFERENCES: 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. An under other than honorable conditions (UOTHC) discharge is 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. DISCUSSION: 1. The applicant's service record shows he received an Article 15 for wrongfully traveling outside the 100-mile radius without an approved mileage pass and conviction by a summary court-martial for disobeying an officer. 2. The applicant's administrative discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a patterns of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights. 3. Although a discharge under other than honorable conditions is normally appropriate for the authority and reason for his discharge, it appears that his chain of command and the final approval authority considered his overall record of service resulting in the issuance of a general discharge under honorable conditions. 4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The granting of veteran's benefits is not within the purview of the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000715 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000715 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2