BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160005089 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: 4 January 2018 DOCKET NUMBER: AR20160005089 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: 4 January 2018 DOCKET NUMBER: AR20160005089 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 an upgrade of his general discharge under honorable conditions to honorable. 2. The applicant states: a. His battle buddy passed away in a horrible way. While their section was conducting a qualification drill with the Patriot Missile Defense System, his battle buddy was injured. The launcher pinned him down by his leg and he fell off the launcher platform onto the desert sand below when he was released. His leg was crushed; he was diagnosed with a broken leg with no open wounds. A day or two later something went wrong. His battle buddy had a cast on his leg and he self-removed the cast because of tremendous itching. When the cast was removed, his entire leg was black. He was taken to the hospital and his leg was amputated. He passed away from infections within days. He was sent with his battle buddy's body to Washington, DC, for burial in Arlington National Cemetery. He presented the flag to his battle buddy's mother at the burial service. b. It was such a horrific experience that it affected him negatively. When he returned to his unit, he realized he could not put his family through that if something similar happened to him. His motivation to be in the Army was gone. He started missing formations. He never disrespected his noncommissioned officers or officers. His platoon sergeant and immediate leadership saw he had lost all interest in being there. c. The new first sergeant, who never knew his battle buddy, was not empathetic towards him or felt any remorse because of his battle buddy's death. The new first sergeant recommended his discharge from the Army. He was discharged under honorable conditions (general). d. He cannot use his GI Bill educational benefits; he hasn't applied for any benefits from the Department of Veterans Affairs. He completely separated himself from the service. He comes from a military family and they felt bad for him. They displayed empathy toward him and they understood. Losing his battle buddy affected him tremendously. 3. The applicant provides: * self-authored statement, dated 19 February 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * burial memorial invitation * photograph of Patriot Missile System Launcher 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 29 July 1997 for a period of 3 years. 3. Between 9 and 26 February 1998, he was counseled in writing for: * twice failing to repair (go to the appointed place of duty) * maintaining unacceptable room standards * disobeying a lawful order 4. He provided a memorial ceremony brochure in memory of his battle buddy who died in service on 11 April 1998. 5. Between 28 April and 17 August 1998, he was counseled in writing for: * failing to repair * breaking restriction * missing formation * failing to go to his appointed place of duty at the prescribed time 6. On 4 June 1998, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty (three specifications) and being derelict in the performance of his duties (two specifications). 7. On 29 July 1998, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty and breaking restriction. 8. On 28 September 1998, he underwent a mental status evaluation and was diagnosed as having an occupational problem. He was found mentally responsible and was psychologically cleared for any administrative action deemed appropriate by his command. 9. On 14 October 1998, he was notified of his proposed separation for misconduct (minor disciplinary infractions) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph  14-12a. The unit commander cited his two NJPs as the basis for the separation action. 10. On 24 October 1998, 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 statements in his own behalf. a. He provided a statement from his wife, dated 26 October 1998, wherein she stated her husband had accomplished a lot of goals for his future, he had a lot of motivation, and he was accepted to go into the Special Forces. Her husband might have committed a few little minor infractions, but they were not major enough to put him out of the service. b. He also provided an undated, self-authored statement stating he didn't agree with his discharge under the provisions of chapter 14 after all he had done for his battery. All he wanted to do was serve his country the best way he knew how. He realized he made a lot of mistakes, but he didn't think they were adequate reasons to release him. He asked for the chance to redeem himself. He wanted the opportunity to tell his side of the story and he wanted to continue to serve his country. 11. On 2 November 1988, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate. 12. On 6 November 1998, he was discharged under honorable conditions (general) for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12a (Minor Disciplinary Infractions). He completed 1 year, 3 months, and 8 days of active service. 13. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 14. An advisory opinion was rendered by the Army Review Boards Agency Psychologist, dated 22 November 2017, wherein he stated: a. The applicant underwent a separation mental status examination on 28 September 1998. The examiner diagnosed him as having an occupational problem. The examiner noted no mental abnormalities, judged the applicant to meet Army retention standards, and cleared him for administrative discharge. A separation medical examination on 30 September 1998 also cleared him. The examiner noted a physical profile rating of "111111." Further, he observed no psychiatric problem in the applicant and the applicant did not report psychiatric symptoms during the process. b. The available records do not reasonably support post-traumatic stress disorder or another boardable behavioral health condition existed at the time of the applicant's military service. c. There were no behavioral health conditions present at time of his misconduct. d. A behavioral health evaluation was conducted prior to his administrative separation. e. He met medical retention standards. f. His medical conditions were duly considered during medical separation processing. g. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the applicant's discharge in this case. h. Based on the information available for review at the time, the applicant did not have a mitigating medical or behavioral health condition for the offenses which led to his separation from the Army. 15. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. 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 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 (military or civilian 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. DISCUSSION: 1. The applicant contends that losing his battle buddy affected him tremendously. He contends that it was such a horrific experience that it affected him negatively, his motivation to be in the Army was gone, and he started missing formations. 2. The Army Review Boards Agency Psychologist determined the applicant's medical conditions were duly considered during medical separation processing and he did not have a mitigating medical or behavioral health condition for the offenses which led to his separation from the Army. 3. The evidence of record shows he was counseled in writing prior to his battle buddy's death for: * twice failing to repair * maintaining unacceptable room standards * disobeying a lawful order 4. His administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 5. His record of service during included numerous adverse counseling statements and two NJPs. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005089 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005089 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2