IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003967 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 IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003967 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. IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003967 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 his under honorable conditions (general) discharge be upgrade to an honorable discharge. 2. The applicant states: a. To understand why he is making this request, he must first explain the history of the incident in question. He was in the Army for 3 years and 11 months. Once he completed basic training and military police (MP) training, he received orders for Bamberg, Germany. Once he got there, he was immediately deployed to Iraq. He volunteered to go with a unit that needed one more person. When he returned from deployment a year later, he spent the next several months training and preparing Soldiers that were being deployed. Nine months later, he was deployed to Afghanistan for a year. When he returned, he was immediately chosen above his peers to go to Combatives I, Combatives II, and the Warrior Leaders Courses. In just 3 short years, he was promoted to sergeant (SGT)/E-5, about 2 years faster than the average Soldier. In all this time, he had yet to actually work in an MP capacity. He was 23 years old, and although he believed he was invincible, there were still things he did not know and maturity he still needed to develop. Nevertheless, he was a great and proud Soldier and other Soldiers looked up to and respected him. b. For the first time ever, he was working as an MP. He and two Soldiers under him were patrolling and securing post. They came upon the post office, which was in a shambles with mail scattered on the floor and hanging out of boxes. His first thought was that they had to protect the mail and put it where it belonged. He instructed the other two Soldiers to do this. He felt the mail was exposed and vulnerable to theft, identity theft, and invasion of privacy. What he now knows is that what he should have done was report this so an investigation could be done as to why the post office was in that shape and to allow for proper postal authorities to handle the mail. c. Apparently, there was investigation initiated, but upon arrival, the post office was secured. He heard about the investigation and came forward to inform what they had found on patrol and the actions they took. The next thing he knew, they we were in trouble for mail tampering. No mail was reported opened, damaged, or missing. He took responsibility since it was his instruction to do what they did and to protect the two Soldiers who both already had Article 15s in their records. They did receive punishment but were retained in the Army; only he was discharged. He also needs to mention that he and the Criminal Investigation Command (CID) agent in charge were in competition over the same girl's affection. He always felt the CID agent wanted him out of the picture and that is why he was discharged 6 months after the fact. It did not work though, because he still married the girl and they have two children. She remained in the Army and is now a sergeant first class in high regard. Sadly, after 7 years of marriage, they divorced, but are still friends. He followed her career and worked wherever he could find a job; however, he now needs to start his own career. d. He feels his discharge was unjust because his actions did not constitute intentional misconduct but rather a mistake in an otherwise impeccable record. He was a good Soldier and he was proud to be a Soldier and serve his country. His intention was to be a career Soldier as he felt that it was what he was born to do. He and his twin brother joined together and his brother still serves. He has always wanted to protect and serve the public in some capacity but most specifically, in law enforcement. It devastated him when he was discharged six months after the "offense," after he was given the disciplinary action which he accepted and completed and continued to be the best he could be. Then, four months later, he was being discharged unexpectedly. He has always excelled at any job he has undertaken. He is providing the many letters, awards, and commendations from the Gilmer County, GA, Sheriff's Department that he received in just one year of employment there as a detention officer. They wanted him to become a deputy; however, he has not been able to get into the State Peace Officer Training Certification course yet because of his discharge status. This is really unfair to him in his opinion as he is an honest, ethical, reliable, and high performing employee and always has been. He cannot launch a respectable career with this status in his record. e. He truly believes he served his country honorably for 4 years. He had an exemplary record and no prior disciplinary incidents or even a single negative counseling or evaluation report. He had two combat deployments; accelerated promotions; and the respect of his subordinates, peers, and superiors. He made a mistake that was an error in judgment but with the best of intentions and not a deliberate act of misconduct. His hope of all hopes is that someone will actually take the time to look at all of this and see that he is a good person who did not deserve this outcome for making a wrong decision, which was a judgment call in his capacity as the senior MP officer and based on what he thought was the best course of action to secure and safeguard exposed and vulnerable mail. His error resulted from a lack of training and experience. He could just as easily have received counseling/training and become an even better Soldier and MP instead of receiving the Article 15 and then later being discharged for simply making a wrong decision in an incident where that decision was based on good intent. He is a very honorable and honest person and he does not cheat, lie, or steal. He is truly not bitter about this but now he is trying to move on and start a career and it is even more apparent the effect that this is having on the rest of his life. He is respectfully asking for this wrongful situation to be rectified. 3. The applicant provides: * his enlisted record brief (ERB) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * two DA Forms 638 (Recommendation for Award) * seven third-party letters of recommendation * a letter of appreciation * several letters of commendation and certificates related to his duties as Sheriff's Office Detention Officer * his credit report * a letter from the Boys and Girls Club of North Georgia * seven Certificates of Training * three pages of his record in the Army Training Information Architecture (ATIA) 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 28 October 2003. He was awarded military occupational specialty (MOS) 31B (MP) upon completion of initial entry training. 3. The applicant's ERB shows he arrived in Germany on or around 26 March 2004. His served in Iraq from 19 April 2004 to 18 April 2005 and in Afghanistan from 26 January 2006 to 26 January 2007. He was promoted to sergeant (SGT)/E-5 on 1 September 2006. 4. The applicant's record shows that following an investigation by the U.S. Army CID Office in Bamberg, Germany, CID concluded the applicant, while serving in the rank of SGT with MP duties, was involved in committing the offenses of unlawful entry, dereliction of duties, obstruction of justice, and making a false official statement. The applicant's actions occurred in August 2007 when he entered the front foyer of the U.S. Army Garrison Bamberg Community Mailroom with two other Soldiers, while on MP patrol duties, removing mail from mailboxes not belonging to him, leaving it in the open foyer area, and dumping trash from the trash receptacles on to the floor of the front foyer area. The applicant also gave a false report to the on-duty MP desk sergeant about his security checks of the community mailroom. 5. On 13 September 2007, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for: * making a false official statement * unlawfully entering the mailboxes of the consolidated mailroom * dereliction of his duties by failing to report violations of the UCMJ 6. The applicant did not appeal his NJP. 7. On or around 17 January 2008, the applicant's company commander informed him of his intent to separate him from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. The commander indicated it was his intention to recommend retention if it was combined with reclassification to another MOS, because the applicant's actions made him ineffective as an MP officer; however, if his recommendation for retention was denied, he would recommend a general under honorable conditions discharge. The commander stated the reasons for the proposed separation action were that on 8 August 2007, the applicant unlawfully entered mailboxes in the consolidated mailroom and was derelict in the performance of his duties by failing to report violations of the UCMJ. 8. The applicant was also advised of his right to consult with legal counsel, submit statements in his own behalf, and to waive his rights. He declined the opportunity to consult with legal counsel and elected not to submit a statement in his own behalf. 9. The separation proceedings were reviewed by an official from the Office of the Staff Judge Advocate who found the proceedings legally sufficient. 10. On 31 January 2008, the applicant's battalion commander recommended his separation from the Army with a general under honorable conditions characterization of service. 11. On 1 February 2008, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, with a characterization of service of general under honorable conditions. 12. On 12 February 2008, the applicant submitted a statement to the separation authority requesting reconsideration of his decision to separate him. The separation authority denied his request for reconsideration. On 22 February 2008, the applicant was discharged accordingly. 13. The Army Discharge Review Board denied his request for an upgrade of his discharge on 29 June 2009. 14. The applicant provides: a. His ERB and DD Form 214, which list his career awards and decorations. b. Two DA Forms 638, which illustrate his accomplishments and his Soldierly characteristics. c. Multiple third-party letters of recommendation that show (1) his superiors disagreed with the course of action taken against him, calling it a severe miscarriage of justice; (2) he was made an example out of for an offense less serious than that of others who were retained in the Army; (3) his incorrect actions had no ill effect on his unit, the MP Corps, or the Army; (4) they described him as a strong leader with unparalleled knowledge, a go to man, etc. d. Several letters of commendation and certificates related to his duties as a Sheriff's Office Detention Officer. These documents show he is still that kind of employee, highly regarded for his professionalism and work ethic. e. His credit report, which shows he has excellent credit and he is responsible for his debts and obligations. f. A letter from the Boys and Girls Club of North Georgia that shows he was employed by this organization as the Recreation Coordinator. g. Seven Certificates of Training that he acquired during and after his military service. h. Three pages of his record in the ATIA that show a history of his course enrollment. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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 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. DISCUSSION: 1. The evidence shows the applicant, while serving in the rank of SGT with MP duties, was involved in committing the offenses of unlawful entering the mailboxes of the consolidated mailroom, dereliction of his duties, obstruction of justice, and making a false official statement, which are clearly serious offenses. As a result, NJP was imposed against him and subsequently resulted in his separation from the Army. 2. The applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense(s), was administratively correct and in conformance with applicable laws and regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The separation authority determined his service would be characterized as under honorable conditions (general). 3. The applicant's post-service accomplishments are noted. Post-service conduct is not normally a basis for upgrading a characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003967 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003967 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2