BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160005418 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ ___x_____ ___x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160005418 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by revoking Headquarters, 88th Regional Support Command Orders 14-086-00002, dated 27 March 2014, honorably discharging the applicant from the U.S. Army Reserve effective 21 December 2011 and reinstating him in the U.S. Army Reserve for the purpose of convening an administrative separation board. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to crediting the applicant with 3 years of service he did not perform. ___________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: AR20160005418 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests receipt of credit for 3 years of service on behalf of the applicant or, alternately, revocation of the applicant's discharge and reinstatement in the U.S. Army Reserve (USAR). 2. Counsel states: a. The circumstances surrounding the applicant's discharge by order, dated 21 November 2011, are such that he should receive 3 years of credit for service based on ineffective assistance of U.S. Army legal counsel. b. The applicant enlisted in the USAR in 1988 and served capably and honorably throughout his career, steadily advancing to the rank of staff sergeant (SSG). In his civilian career he was a corrections officer, which made his daily life outside of the military highly stressful. The stress of his civilian job was so great that he suffered from major anxiety and depression so much so that he acted out as a civilian in a situation which he deeply regrets. In 2009, he was charged with a variety of criminal offenses, which led to a 2011 conviction by a civilian court of several counts of aggravated assault and reckless endangerment of another person for which he was sentenced to 6 months to 2 years of incarceration in the State prison. Not once was there ever an allegation of misconduct in connection with his military service and the civilian conviction was a first-time offense arising out of untreated stress and anxiety. c. By memorandum, dated 29 August 2011, he was notified of the intent to separate him from the USAR based on his civilian conviction. Accompanying the notification was an election of rights form. The U.S. Postal Service return receipt reflects his wife, Mrs. J____ G____, signed for the notification on 2 September 2011. d. Provided are copies of email correspondence which set forth the communications between the applicant (sometimes through his wife) and the 154th Legal Services Organization (LSO), part of the USAR Trial Defense Service. The email correspondence shows the applicant made a request for counsel to the 154th LSO on or about 19 September 2011, within the 30 days required to respond to the notification of intent to separate. Major (MAJ) W____ E. P____ IV received this request on 20 September 2011. On 21 September 2011, MAJ P____ emailed the applicant's wife, identifying himself as an attorney with the 154th LSO and indicating he would be assisting to secure counsel for the applicant. Mrs. G____ informed him that her husband was incarcerated in Clearfield, PA. On that same day, MAJ T____ B____'s team was assigned to handle the applicant's case. Mrs. G____ acknowledged the assignment and the next day, 22 September 2011, inquired as to the status. This was forwarded to MAJ B____ by MAJ P____ on 23 September 2011. e. By letter, dated 1 October 2011, MAJ B____ wrote to the applicant and provided to him the election of rights form for him to complete. This was the day before the suspense date for the notification to be returned. The applicant elected to exercise his right to an administrative separation board on the form. f. Mrs. G____ sent MAJ P____ an email on 9 January 2012, indicating the applicant had not received any information since October 2011 and he was able to continue drilling (attend training) at unit training assemblies (UTA). She inquired whether he was still a member of the USAR and able to finish his career. On the same day, MAJ P____ forwarded Mrs. G____'s email to MAJ B____ for response. The applicant again emailed MAJ P____ on 18 January 2012, requesting information as to his status and whether he could attend UTAs to continue his career. On 31 January 2012, he emailed MAJ P____ to inform him he had received an order reducing him in rank/grade to private/E-1 and discharging him from the USAR with his service characterized as under other than honorable conditions (UOTHC). g. On 31 January 2012, MAJ P____ emailed a superior officer within the 154th LSO indicating, "This has gotten out of hand and needs to be handled at your level. Apparently MAJ B____'s team never contacted this client, he never made an election, and has been discharged with a UOTHC. My experience is that you can have those orders revoked within 30 days of issue." h. On 31 January 2012, Lieutenant Colonel (LTC) W____ E____ emailed LTC J____ P____ (both officers within the 154th LSO at the time) and indicated MAJ B____ had not responded to him. Efforts were made that same day to assign new counsel. Thereafter, a Trial Defense Service attorney was assigned to represent the applicant and presented evidence that he exercised his right and had been seeking the opportunity to defend himself against the separation action, but that counsel had failed to adequately represent him in the process through no fault of his own. As a result, MAJ A____ M____, Deputy Staff Judge Advocate of the 310th Expeditionary Sustainment Command, indicated after reviewing everything, they would work with the USAR to have his discharge vacated. The action would likely be reinitiated vice scheduling a board based upon the old notification and a board would hopefully be scheduled sometime by September. i. The separation authority did not direct the applicant's discharge until 18 November 2011, which was more than enough time for counsel to ensure that the right to a board hearing would have been preserved. Had the applicant been allowed the opportunity to appear before the board, he would have had the opportunity to convince the board that he should be retained, or at the very least have the separation authority choose a less harsh option than the most severe, which is what happened in the absence of effective representation. j. It should be noted that Colonel C____ G____ reviewed the applicant's misconduct packet and recommended only a general discharge under honorable conditions. He did not recommend a reduction in rank or a discharge UOTHC. k. Had the applicant been able to present evidence before a board, he would have presented favorable evidence, such as the character-reference statement provided by L____ A____ W____. l. Upon presenting the above information to the Army Discharge Review Board (ADRB), the applicant received the full relief he sought, which resulted in a recharacterization of his discharge to honorable, a change to the narrative reason for separation to Secretarial Authority, and restoration of his rank/grade to SSG/E-6. Nonetheless, he still lost years of service as a result of the discharge that could have been contested, but he was separated due to military counsel's negligence. As such, he is seeking credit for 3 years of service. In lieu of that, he is requesting revocation of his discharge and reinstatement in the USAR. 3. Counsel provides: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * notification of separation proceedings and confirmation of service by mail, dated August 2011 * email correspondence from September 2011 through January 2012 * letter from the Senior Defense Counsel to the applicant, dated 1 October 2011 * applicant's election of rights, undated * endorsement of administrative separation, dated 21 October 2011 * character-reference statement, undated * legal review of administrative separation, dated 6 November 2011 * administrative separation approval, dated 18 November 2011 * Headquarters, 88th Regional Support Command, Orders 11-325-00010, dated 21 November 2011 * email correspondence, dated 10 July 2012 * email correspondence, dated 2 January 2013 * ADRB Determination, dated 14 March 2014 * letter from the ADRB, dated 18 March 2014 * letter to the Army Review Boards Agency, dated 18 February 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the USAR on 25 February 1988, whereafter his membership status alternated between troop program unit, USAR Control Group (Reinforcement), non-military/civilian break, Army National Guard unit, Army National Guard mobilized service, and ultimately back to troop program unit membership in the USAR at the time of his discharge. 2. The complete facts and circumstances surrounding his civilian arrest, conviction, and incarceration are not in his available records for review. 3. On 29 August 2011, he was notified by his commander of initiation of separation proceedings from the USAR for misconduct – conviction by a civil court – under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), chapter 12. The reason for the proposed action was that he was found guilty of eight counts of aggravated assault and nine counts of recklessly endangering another person, crimes that were committed on 13 November 2009. 4. The notification advised him the separation action would be suspended for 45 days to give him an opportunity to exercise his right to consult with appointed counsel, obtain copies of documents that would be sent to the separation authority supporting the basis for the proposed separation, request a hearing before an administrative board, and provide written statements on his behalf. He was advised to complete the attached endorsement acknowledging receipt of the notification memorandum and indicating the election of his rights within 30 days of receipt of the memorandum. 5. An affidavit states the notification, dated 29 August 2011, was mailed to the applicant on 30 August 2011. A return receipt for merchandise shows a registered letter addressed to the applicant was signed for by his wife on 2 September 2011. 6. Email correspondence shows the applicant's wife, J____ G____, initiated contact with the 154th LSO on 19 September 2011, requesting legal counsel on her husband's behalf as he was incarcerated and had no access to email. On 21 September 2011, MAJ W____ P____ responded to Mrs. G____ via email and advised that MAJ T____ B____'s team would handle her husband's case as he was the closest counsel. MAJ B____ was included in the email correspondence and would be in contact with her husband. Mrs. G____ responded to the email on 22 September 2011, asking if there was any new information on her husband's case and advising that she was able to speak with him on the telephone daily and could relay needed information. 7. A letter from MAJ B____ to the applicant, dated 1 October 2011, advised him he was the Senior Defense Counsel for the Pittsburgh Region of the USAR Trial Defense Service and would most likely assign his case to Captain R____ P____, but he was himself writing to the applicant to get the process started to save time. The letter stated he was enclosing forms regarding his separation action the applicant needed to sign and return as soon as he received and completed them. 8. The applicant signed the undated memorandum pertaining to his election of rights, presumably sent to him by MAJ B____, initialing the paragraph stating he had exercised his right and consulted with counsel. He requested copies of documents that would be sent to the separation authority supporting the basis of his proposed separation. He also requested to exercise his right to a hearing before an administrative separation board. He understood that after having requested appearance before the board, his willful failure to appear before the board would constitute a waiver of his rights to a personal appearance before the board, unless he was in civil confinement. He requested designation of counsel for representation at the hearing and indicated he might submit statements in his own behalf at a later date. 9. On 21 October 2011, the 643rd Regional Support Group Commander reviewed the applicant's misconduct packet and recommended his receipt of a general discharge under honorable conditions. 10. On 6 November 2011, the administrative separation packet pertaining to the applicant was reviewed by the Deputy Staff Judge Advocate. The applicant, a Soldier with more than 6 years of service, was found guilty in civil court of eight counts of aggravated assault and nine counts of recklessly endangering another person. The unit properly notified the Soldier of initiation of separation action on 29 August 2011. The notification was delivered by the U.S. Postal Service on 2 September 2011. The Soldier did not respond, thereby waiving his right to an administrative separation board in accordance with Army Regulation 135-178. The action was found legally sufficient and the approval authority was advised he could choose from the following options: a. direct that the Soldier be separated with an honorable discharge, general discharge under honorable conditions, or a discharge under other than honorable conditions and further direct reduction to private/E-1; b. direct that the Soldier's action be referred to a board of officers; c. direct that the Soldier be separated, but suspend separation for a period not to exceed 12 months or expiration of obligated service, whichever is earlier. After satisfactory completion of the probationary period, the separation would be remitted and the Soldier would be retained; or d. direct that the Soldier be retained. 11. On 18 November 2011, the approval authority reviewed the circumstances outlined in the administrative separation packet and directed the applicant's separation from the USAR with a discharge UOTHC and his reduction to the rank/grade of private/E-1. 12. Headquarters, 88th Regional Support Command, Orders 11-325-00010, dated 21 November 2011, reduced him in grade/rank from SSG/E-6 to private/ E-1 and discharged him from the USAR UOTHC effective 21 December 2011. 13. Email correspondence from Mrs. G____ to MAJ P____, dated 9 January 2012, stated the applicant did not receive any information since October 2011. He was able to continue attending UTAs and was inquiring as to his status in the USAR. A follow-up email was again sent to MAJ P____ on 18 January 2012, signed by the applicant, stating he had not received any information on his status and would like to attend UTAs to continue his career if permitted. MAJ P____ responded that he had notified MAJ B____'s chain of command and advised him to expect a response soon. 14. The string of email correspondence continues on 31 January 2012, when the applicant informed MAJ P____ that as of that day he had not received any information regarding fighting the discharge, although he received orders reducing him in rank to private and discharging him UOTHC. He asked if his discharged could be changed to honorable and if he could fight the discharge and finish his career to retire. The subsequent email correspondence shows MAJ P____ emailed his superior officer stating the situation had gotten out of hand and needed to be handled at his level because MAJ B____'s team apparently never contacted the applicant; the applicant didn't make an election and had been discharged UOTHC. LTC E____ suggested new counsel might need to be assigned based on MAJ B____'s lack of communication with the applicant. 15. MAJ M____, Deputy Staff Judge Advocate, sent an email on 10 July 2012, stating that office would work with the 377th Theater Sustainment Command (presumed to mean 310th Sustainment Command), 88th Regional Support Command, and the USAR Command to have the applicant's discharge vacated. The action would likely be reinitiated vice scheduling a board based upon the old notification and a board would hopefully be scheduled sometime by September. He sent a follow-up email on 2 January 2013, stating he was being told the orders would not be revoked due to the delay in raising the issue. He suggested petitioning the Army Board for Correction of Military Records for vacation of the discharge. 16. The applicant petitioned the ADRB for an upgrade to his discharge UOTHC. On 14 March 2014, the ADRB determined his discharge was improper based on his receipt of ineffective assistance of counsel. Accordingly, the ADRB voted to grant full relief in the form of an upgrade of his character of service from UOTHC to honorable, a change to his narrative reason for separation to Secretarial Authority, and restoration of his rank to SSG/E-6. 17. Headquarters, 88th Regional Support Command, Orders 14-086-00001, dated 27 March 2014, revoked Orders 11-325-00010, dated 21 November 2011, pertaining to the applicant's reduction and discharge. 18. Headquarters, 88th Regional Support Command, Orders 14-086-00002, dated 27 March 2014, honorably discharged the applicant from the USAR in the rank of SSG effective 21 December 2011 per the above-referenced ADRB determination. 19. The applicant provided an undated character-reference statement from L____ A____ W____, the applicant's cousin through marriage. She stated she has known the applicant for over 25 years and has spent a great amount of time with him and his wife over the years. Her statement attests to how hardworking, respected, and dependable he is. Although he made a mistake, she believes he has more than made up for that mistake and deserves a second chance. REFERENCES: Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers of the Army National Guard of the United States and the USAR not performing full-time active duty in the U.S. Army. a. Chapter 12 establishes policy and prescribed procedures for separating members for misconduct. Specific categories of misconduct include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, abuse of illegal drugs, and civil conviction. (1) Discharge action may be initiated against Soldiers when initially convicted by civil authorities, or action is taken tantamount to a finding of guilty; when a punitive discharge would be authorized for the same or a closely related offense under the Uniform Code of Military Justice, or the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation; or when specific circumstances of the offense warrant discharge. (2) Cases often arise that warrant consideration with a view toward retention of the Soldier in the Army. (a) In determining whether retention should be recommended or approved, full consideration should be given to the gravity of the offense involved, the circumstances related to it, and any matters in extenuation. Also, the military record of the Soldier prior to the commission of the offense should be considered, as well as prospects for rehabilitation. (b) If retention in the Army is desired and a form of civil custody exists, such as parole or probation, the nature of which would interfere with the Soldier's normal performance of military duties, civil authorities will be requested to relinquish such custody during the Soldier's term of military service. If the civil authorities decline to relinquish custody or if the conditions placed on relinquishment of custody are unduly burdensome to the Army, the Soldier will not be considered for retention as a general rule, but will be discharged under this regulation. (3) Action following disposition by civil courts. (a) When discharge is contemplated while a Soldier is under military control, the unit commander will take action as specified in the Administrative Board Procedure (chapter 3, section III). Where the Soldier is confined, the provisions of paragraph 2-18 and chapter 3, section IV, are applicable. (b) If the sole basis for discharge is conviction of a civil offense, counseling and rehabilitative efforts are not required prior to initiation of discharge action. (c) When a board hearing has been properly waived, the case will be processed under the notification procedure and the separation authority will take action under paragraph 3-9. b. Paragraph 2-18 states when discharge has been ordered by the separation authority and the Soldier cannot be located or is absent in the hands of civil authorities subsequent to the issuance of the discharge orders, the discharge may be executed regardless of absence. The notification procedure in paragraph 2-17 is applicable. c. Paragraph 2-17 states notice of discharge may be either actual, as by delivery to the Soldier of the discharge order or certificate, or constructive, when actual delivery of the discharge order cannot be accomplished due to the absence of the Soldier to be discharged. d. Chapter 3 provides guidelines for separation with regard to procedural requirements. Among the enumerated rights of the Soldier during the notification procedure listed in paragraph 3-4 is the right to request an administrative board per chapter 3, section III, if the Soldier to be separated has 6 or more years of total Active and Reserve military service on the date of initiation of the recommendation for separation. The Soldier's rights may be waived in writing after being afforded a reasonable opportunity to consult with counsel. Failure to respond within 30 calendar days from the date of receipt of the notice will constitute a waiver of these rights. (1) Section III states that when the administrative board procedure is required under a reason for separation cited in this regulation, the Solider will be notified of the following in writing: * the basis of the proposed separation, including the circumstances upon which the action is based * whether the proposed action could result in a discharge from the Army * the least favorable characterization of service * the right to consult with counsel * the right to obtain copies of documents that will be sent to the separation authority * the right to request a hearing before an administrative board * the right to present written statements instead of board proceedings * the right to representation at the administrative board by military counsel or civilian counsel * the right to submit a conditional waiver of the right to a hearing before an administrative board * the right to be present at the board hearing will be waived if the Soldier fails to appear without good cause (2) Reasonable effort should be made to furnish copies of the notification memorandum to the Soldier through personal contact by a representative of the command. In such a case, a written acknowledgement of receipt of the notification will be obtained. If the Soldier cannot be contacted or refuses to acknowledge receipt of the notification, the notification memorandum will be sent by registered or certified mail. The individual who mails the notification will prepare an affidavit of service by mail. (3) Section IV details additional provisions concerning Soldiers who are confined by civil authorities. If separation proceedings under this chapter have been initiated against a Soldier confined by civil authorities, the case may be processed in the absence of the respondent per paragraph 2-18. The following notification requirements apply: (a) A Soldier confined by civil authorities will receive a notification memorandum under the Notification Procedure or the Administrative Board Procedure as appropriate. The notification memorandum will be delivered personally to the Soldier or sent by certified mail, return receipt requested, to the Soldier's last known home address. When a Soldier refuses to acknowledge receipt of notice, the individual who mails the notification will prepare an Affidavit of Service by Mail. This will be inserted in the Soldier's personnel file. (b) If the notification memorandum is delivered personally, receipt will be acknowledged by signing the endorsement. If the Soldier does not acknowledge receipt, the notification memorandum will be sent by mail as provided in a, above. (c) The required actions governing the Soldier's response or failure to respond are prescribed in paragraph 3-6, or paragraph 3-12, as appropriate. (d) The name and address of the appointed military counsel for consultation will be specified in the notification memorandum. (e) Where the Soldier has a right to, and requests, a hearing before an administrative board and a right to, and requests, representation by counsel at the board hearings, the Soldier will be notified that the proceedings will be conducted in his or her absence and that he or she will be represented by counsel. DISCUSSION: 1. On 29 August 2011, the applicant was notified by his commander of initiation of separation action from the USAR for misconduct – conviction by a civil court – under the provisions of Army Regulation 135-178, chapter 12. The reason for the proposed action was that he was found guilty of eight counts of aggravated assault and nine counts of recklessly endangering another person, crimes that were committed on 13 November 2009. 2. The complete facts and circumstances surrounding his civilian arrest, conviction, and incarceration are not in his available records for review. Although the exact dates of his incarceration are unknown to the Board, it appears he was incarcerated at the time of his notification of separation and was presumably still incarcerated by civilian authorities at the time of his discharge. 3. The evidence of record shows the notification was sent via certified mail to his home address and signed for by his wife on 2 September 2011. The evidence also shows his wife contacted the Trial Defense Service on his behalf on multiple occasions in September 2011 and October 2011 requesting counsel, and she was informed via email that his assigned counsel would be part of MAJ B____'s team and MAJ B____ would contact the applicant. 4. A letter from MAJ B____ to the applicant, dated 1 October 2011, advised him that he was the Senior Defense Counsel for the Pittsburgh Region of the USAR Trial Defense Service and would most likely assign his case to Captain P____, but he was writing to the applicant himself to get the process started to save time. The letter from MAJ B____ stated he was enclosing forms regarding the separation action that the applicant needed to sign and return as soon as he received and completed them. 5. The applicant signed the undated memorandum pertaining to his election of rights, presumably sent to him by MAJ B____, which shows he exercised his right to consult with counsel and requested to exercise his right to a hearing before an administrative separation board. He requested designation of counsel for representation at the hearing and indicated he might submit statements in his own behalf at a later date. 6. By virtue of his 6 or more years of service, he was entitled to a hearing before an administrative board prior to separation. Even in his absence due to confinement by civil authorities, he had the right to an administrative board conducted in his absence with his representation by counsel at the proceedings in his stead. 7. It is presumed the applicant's chain of command never received his election of rights notification due to the inadequate legal representation he received from MAJ B____, his assigned counsel, as his administrative separation packet was reviewed by the Deputy Staff Judge Advocate on 6 November 2011 and found legally sufficient. In her review of the separation packet, the Deputy Staff Judge Advocate opined the unit properly notified the applicant of his separation on 29 August 2011, but he did not respond, thereby waiving his right to an administrative separation board. 8. The applicant was subsequently demoted to private/E-1 and discharged UOTHC on 21 December 2011 without having been afforded his right to an administrative separation board. 9. In light of his inadequate legal representation, the ADRB granted his request for an upgrade of his discharge from UOTHC to honorable and restoration of his rank to SSG/E-6. 10. Despite the ADRB action in the applicant's favor, counsel argues that had the applicant been afforded an opportunity to a hearing before a separation board prior to his discharge, the separation board might have been persuaded to allow his retention in the USAR until he reached retirement eligibility, a scenario the ADRB upgrade of his discharge to honorable and restoration of his rank did nothing to rectify. 11. Based on the seriousness of his civilian offenses, it is impracticable to determine the likelihood of the applicant's retention in the USAR and continued service without the benefit of an administrative separation board hearing. 12. The Board may determine the evidence supports reinstating the applicant in the USAR for the purpose of convening an administrative separation board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2