BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160001840 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: 7 September 2017 DOCKET NUMBER: AR20160001840 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: 7 September 2017 DOCKET NUMBER: AR20160001840 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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * 7 Army Achievement Medals * Army Commendation Medal * Expert Marksmanship Qualification Badge with Machine Gun Bar * Expert Marksmanship Qualification Badge with Pistol Bar * Combat Lifesaver Course 2. The applicant states, in effect, he received multiple awards and certifications while stationed at Fort Hood, TX and Fort Wainwright, AK. He also received an honorable discharge while stationed at Fort Hood from 2000-2001. He claims the awards and decorations are not present in his official military personnel file (OMPF) or listed on his DD Form 214. He further states he cleared out of the Army in 2001 due to alcoholism only to be arrested in 2002 and processed back into the Army to be court-martialed for misconduct. It appears he believes his alcoholism should have resulted in a medical discharge. 3. The applicant provides: * DD Form 214 * Permanent Orders 053-345 * 3 memoranda * 2 DA Forms 4856 (Developmental Counseling Form) * 5 DA Forms 2823 (Sworn Statement) * 2 DA Forms 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) 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 16 January 1997. 3. He received nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on: * 4 June 2001, for being found drunk while on duty on 4 May 2001, at Fort Wainwright, AK * 18 July 2001, for failing to go at the time prescribed to his appointed place of duty and for making a false official statement 4. His OMPF contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 31 May 2001, which documents that a bar to reenlistment was approved on 29 June 2001. It further shows the applicant: * acknowledged that he received a copy of his commander's recommendation to bar him from further reenlistment * was counseled and advised of the basis for the action * indicated he did not desire to submit a statement in his own behalf 5. The applicant's record contains a memorandum issued by the Clinical Director, Headquarters, U.S. Army Medical Department Activity (Alaska) on 23 May 2001 who states the applicant was evaluated, on 9 May 2001, after being command referred due to recurrently reporting to duty smelling of alcohol and one incident of being found drunk on duty. Based on information provided during the interview, the applicant met the criteria for a diagnosis of alcohol abuse and normally would be recommended for treatment services. However, the applicant was previously enrolled in the Level II, Drug and Alcohol Outpatient Treatment program at Fort Hood, TX, which he failed to complete successfully because he just quit attending treatment. At the time, prognosis for further rehabilitative treatment was considered extremely poor due to the applicant's intent and desire to continue his substance abuse. Therefore, he was considered to be a drug and alcohol rehabilitative failure and was recommended for separation. 6. On 16 July 2002, court-martial charges were preferred against the applicant under the UCMJ, for without authority, absenting himself from his unit for the period 3 August 2001 through 11 June 2002. 7. On 9 August 2002, the evidence shows he pled guilty and he was found guilty by a summary court-martial of going absent without leave (AWOL) from 22 October 2001 through 13 June 2002. The court sentenced him to reduction to pay grade E-1 and hard labor without confinement for 45 days. 8. On 6 August 2002, the applicant’s immediate commander requested the Judge Advocate prepare an administrative separation on the applicant. The commander stated he was recommending the applicant’s separation because he went AWOL while he was already in the process of being discharged by his previous command. He missed movement to the National Training Center prior to going AWOL and he had already received both company and field grade Article 15s. The applicant was a distraction to the unit and incapable of rehabilitation. 9. On 16 August 2002, the applicant’s immediate commander notified him of the intent to initiate separation action against him by reason of misconduct – pattern of misconduct, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for conducting himself in a drunk and disorderly manner, going AWOL, making a false official statement, missing movement, and for failing to return to his appointed place of duty on several occasions. The applicant acknowledged receipt of the notification memorandum the same day. 10. On 16 August 2002, he consulted with legal counsel and was advised of the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights that were available to him. He waived his right to an administrative separation board and he did not submit any statements with his request. He acknowledged that he understood he could encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him. He also acknowledged that he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 11. On 26 September 2002, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed his discharge with a characterization of service of under other than honorable conditions. 12.  The applicant was discharged from the Army on 4 October 2002. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct with a characterization of service under other than honorable conditions. He completed 5 years, 8 months, and 19 days of net active service during this period. Item 14 (Military Education) shows he completed the 8-week Food Service Specialist course in May 1997. This form further shows he was awarded or authorized the: * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar 13. The applicant provides documents which are also contained in his OMPF to include memorandums related to his rehabilitation failure; an order for award of the Army Good Conduct Medal; several sworn statements; and developmental counseling forms. 14.  On 17 September 2014, the applicant petitioned the Army Discharge Review Board (ADRB) to upgrade his discharge. The ADRB denied his petition for an upgrade of his discharge on 18 December 2015. 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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. b.  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. 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. 2. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)), prescribes policies and procedures to implement, administer, and evaluate the ASAP. Objectives of the ASAP include: providing services which are adequate and responsive to the needs of the Army and emphasize alcohol and other drug abuse deterrence, prevention, education, and treatment; implementing alcohol and other drug risk reduction and prevention strategies that respond to potential problems before they jeopardize readiness, productivity, and careers; and restoring to duty those substance-impaired soldiers who have the potential for continued military service. However, the regulation still provides for the separation of soldiers who, after consultation between the commander and the drug and alcohol rehabilitation team, are determined to be rehabilitation failures. Further, the regulation does not preclude initiation of separation action for unfitness or misconduct if appropriate. 3. Army Regulation 600-8-22 (Military Awards) states: a. The Army Achievement Medal is awarded to any member of the Armed Forces of the United States, who while serving in a non-combat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. b. The Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. c. This regulation sets forth requirements for award of basic marksmanship qualification badges. The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman -- in which an individual has qualified in a prescribed record course. An appropriate bar is furnished to denote each weapon with which the individual has qualified. 4. Army Regulation 350-1 (Army Training and Leader Development) states, in pertinent part, the combat lifesaver is a nonmedical Soldier trained to provide lifesaving measures beyond the level of self-aid or buddy-aid. This regulation also states combat lifesavers must be recertified every 12 months at the unit level. 5. Army Regulation 635-5 (Separation Documents), in effect at the time, noted that item 14 would reflect in-service training courses by title, number of weeks, and year successfully completed. The information is intended to assist Soldiers after separation in job placement and counseling; therefore, training courses for combat skills will not be listed. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Chapter 1 states the disability system provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). b. Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a Soldier is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. DISCUSSION: 1. The applicant contends he was awarded 7 Army Achievement Medals, an Army Commendation Medal, the Expert Marksmanship Qualification Badge with Machine Gun Bar and the Expert Marksmanship Qualification Badge with Pistol Bar. He further contends he completed the Combat Lifesaver Course and recertified in the course on numerous occasions. It also appears he believes his alcoholism should have resulted in a medical discharge. 2. There are no orders in his OMPF and he did not provide orders which awarded him additional medals or badges as requested. The governing regulation requires announcement of all personal decorations in orders. Without a copy of the orders which announced the awards or documentation confirming such orders were published, it would be inappropriate to add these awards to his DD Form 214. 3. There is no evidence in his OMPF and he provides insufficient evidence to support his contention that he completed the Combat Lifesaver Course or that he certified in the course on numerous occasions. 4. His record of service shows a history of misconduct that included a summary court-martial conviction and multiple instances of NJP. Accordingly, his chain of command initiated separation action against him. On 16 August 2002, the applicant acknowledged he understood the bases for the separation recommendation. He acknowledged he understood his rights and the procedures involved. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 5. His contentions are acknowledged; however, he was properly separated for misconduct and he has submitted neither probative evidence nor a convincing argument in support of his request. The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. His repeated misconduct and failure to favorably respond to his chain of command diminished the quality of his service. The characterization of service he received was commensurate with the reason for his discharge. 6. The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his/her rank, grade, or specialty and assign an appropriate disability rating before he/she can be medically separated. This is not the case here. The applicant's misconduct by conducting himself in a drunk and disorderly manner, going AWOL, making a false official statement, missing movement and failing to return to his appointed place of duty on several occasions resulted in his immediate commander recommending that he be discharged for a pattern of misconduct. 7. The Army emphasizes alcohol and drug abuse deterrence, prevention, education, and treatment. It is also true that the Army's overriding goal is improved readiness and, to that end, Soldiers who abuse alcohol or drugs, or who commit misconduct while under the influence of alcohol or drugs, are still subject to discharge. If discharged for misconduct, an under other than honorable conditions discharge is still considered appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001840 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001840 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2