BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160003723 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: 29 August 2017 DOCKET NUMBER: AR20160003723 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: 29 August 2017 DOCKET NUMBER: AR20160003723 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, reconsideration of his earlier request to upgrade his under honorable conditions (general) discharge to an honorable discharge. 2. The applicant states: * there is no record of theft * he never used drugs and there is no history of a positive urinalysis * there is no record of assaulting a female * there is no record of any Article 15 that he can recall 3. In addition, he states he asked his platoon leader to let him out of the military after receiving a Red Cross message while deployed to Desert Storm informing him of the birth of his stillborn son. His platoon leader told him he would figure out a way to separate him. He says his platoon leader started a chapter packet and not long after the early release program began. However, he didn’t qualify for early release. At the time he no longer desired to be in the military and asked for a discharge, but his platoon leader chose his own method for separation. This is an injustice. 4. The applicant provides no additional evidence. 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 AR20140013587 on 2 April 2015 2. The applicant provides a new personal statement incorporated within his second application. This statement is considered new evidence that warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 15 June 1988 and was trained in military occupational specialty 13B (Cannon Crewmember). Following initial entry training he was assigned to Fort Bragg, NC. He arrived there on or about 18 November 1988. 4. On or about 8 March 1990, he departed Fort Bragg, NC, and he was reassigned to Germany. 5. Item 5 (Oversea Service) of his Personnel Qualification Record (PQR) shows he served in a temporary duty (TDY) status in Saudi Arabia from 28 December 1990 to 15 January 1991. 6. A DA Form 2823 (Sworn Statement) dated 7 April 1991 shows the applicant was questioned and confessed to the theft of private property. 7. On 26 April 1991, he accepted nonjudicial punishment (NJP) under the provision of Article 15, Uniform Code of Military Justice (UCMJ), for the above offense. 8. A DA Form 4466 (Alcohol and Drug Abuse Client Progress Report) dated 19 August 1991 shows he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). His counselor assessed his progress as fair and his commander appraised his conduct as satisfactory and efficiency as unsatisfactory. 9. On 20 August 1991, he accepted NJP under Article 15, UCMJ for: * striking a female with an open hand (two specifications) * disobeying a lawful command from a superior commissioned officer * disobeying a lawful order from a noncommissioned officer (NCO) * contempt towards an NCO 10. On 10 September 1991, DA Form 3822 (Report of Mental Status Evaluation) was completed by a medical authority and he was cleared to participate in separation proceedings. 11. A DA Form 4466 dated 27 September 1991 shows he was released from the ADAPCP with a recommendation for separation. His commander appraised both his efficiency and conduct as unsatisfactory. 12. On 12 October 1991, a DA Form 4126 (Bar to Reenlistment) was imposed against him. He acknowledged the bar on 23 October 1991. The commander cited larceny of private property and domestic assault as the basis for imposition. 13. On 18 October 1991, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c), for commission of a serious offense (assault, larceny, and disrespect). The commander recommended an under honorable conditions (general) discharge. 14. On 23 October 1991, the applicant acknowledged his commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation 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 and rights that were available to him. He was advised that he may request a hearing by an administrative separation board provided he had 6 or more years of military service or if recommended for an under other than honorable conditions discharge. He elected not to submit a statement on his own behalf. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge 15. It appears that subsequent to the applicant's acknowledgement, his commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12(c), for misconduct, commission of a serious offense. The immediate commander further recommended an under honorable conditions (general) discharge. The intermediate commander concurred with the recommendation of a general discharge. 16. On 29 October 1991, consistent with the chain of command's recommendations, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, paragraph 14-12(c), by reason of misconduct – commission of a serious offense and directed issuance of an under honorable conditions (general) discharge. On 6 November 1991, the applicant was discharged accordingly. 17. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of AR 635-200 with an under honorable conditions (general) characterization of service. His DD Form 214 also shows he completed 3 years, 4 months, and 22 days of active creditable service with 1 year, 6 months, and 25 days of foreign service. He was also awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Southwest Asia Service Medal with two bronze service stars * Parachutist Badge * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Grenade Bar 18. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 19. On 2 April 2015, the ABCMR denied the applicant’s petition to upgrade his discharge. In his application, the applicant stated he needed his discharge upgraded so he could use education benefits. REFERENCE: AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation. a. 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. b. Paragraph 3-7b states 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 evidence of record shows the applicant committed multiple serious offenses (assault, larceny, and disrespect) after his brief deployment to Saudi Arabia and presumably after the loss of his stillborn son. Based on his frequent acts of a discreditable nature with military officials, his commander initiated separation action against him. He was advised of his rights and that he could consult with legal counsel. 2. Despite being given the opportunity to consult with counsel and present matters on his behalf, the applicant elected to waive his rights and to proceed with his administrative separation. All requirements of law and regulation appear to have been met and the rights of the applicant appear to have been fully protected throughout the separation process. 3. The applicant argues that he never used drugs or had a positive urinalysis. His record is void of any indications of drug use or a positive urinalysis. However, his record shows that he was in the ADAPCP. It is presumed that his commander identified a substance abuse concern requiring counseling which led to his subsequent referral to the program. 4. With respect to the birth of his stillborn son, the applicant’s record shows that he deployed to Saudi Arabia in a TDY status from 28 December 1990 to 15 January 1991. It could be presumed that the loss of his son was a catalyst to his misconduct. However, there is no evidence in his record to show a nexus between the birth of his stillborn son and his serious acts of misconduct. 5. Based on his overall record of indiscipline, the separation authority believed the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel and that his misconduct rendered his service unsatisfactory. The separation authority did not believe the applicant's service rose to the standards required for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003723 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003723 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2