ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 October 2019 DOCKET NUMBER: AR20180000789 APPLICANT REQUESTS: reconsideration of the previous the ABCMR decision concerning: * Reinstatement in the U.S Army Reserve (USAR) * Payment of all back pay and allowances from 6 May 2011 * Restoration of his rank of sergeant first class (SFC) effective 24 March 2011 * Processing through the Integrated Disability Evaluation System (IDES) * Correction of Block 28 (Narrative Reason for Separation) on DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period of 6 May 2011 to show he was separated by reason of physical disability * An appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Character Reference Letters * Notification of Deployment * Favorable Deployment Counseling * Retention in the Army Counseling * Report to training Annual Training Memorandum * Orders 099389 Report to Annual Training * Letters of Recommendation FACTS: 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 AR20150012788 on 16 November 2016. 2. The applicant states he would like to be reinstated in the U.S Army and have his records corrected. He believes his record is in error because he was selected for deployment by his company commander and it is inconsistent with being accused of having a pattern of misconduct. On 1 July 2010, he was issued deployment counseling. On 17 September 2010 he received separation counseling. He was favorably selected for deployment when he was listed as temporarily non-deployable. He would like to appear before the Board. 3. The applicant provides a self-authored statement that states that he received a favorable deployment counseling from the company commander that he was selected to fill a critical position for deployment with due to personnel shortages in the command. He is listed as temporarily medically non-deployable for 90 days starting on 14 July 2010. Brigadier General (BG) Ol_m also provided the attached memorandum of record indicating he was erroneously separated from the Army after first being selected for deployment. Sergeant First Class (SFC) Go_g provided a letter stating he was threatened by the battalion commander (BC) and command sergeant major (CSM) to produce improper DA Form 4856 (Counseling Statement) on him to be used as a basis to support separation action after he was temporarily medically put on non-deployable status. His non-deplorability had nothing to do with misconduct because he was on temporary profile and should have been recorded as such. AR 635-200, (Active Duty Enlisted Administrative Separations) paragraph 1 states that before a commander can initiate separation action on a Soldier, adequate counseling and rehabilitation must take place prior to separation. This did not occur and the regulation and requirements were ignored. a. A letter from SFC Go_g states that the applicant did not know his job and was not trained in the military occupational specialty (MOS) of 91B (Light Wheeled Vehicle) which is the requirement to sit in a Motor sergeant position (91X). In his opinion, the applicant抯 discharge was not leveled with proper actions to reflect regulation and or fairness. The chain of command wanted all of the counseling that he completed on the applicant and none of the counseling he completed had ever gone past forgetting to tell about an appointment or arriving late. He further states that he was contacted by the CSM by cell phone who informed him that if he did not come up with a counseling statements that the BC was going to write him a letter of reprimand. The applicant was not the only one who showed up late and did not receive counseling. The BC and CSM accused the applicant of taking a 5 day pass and wanted him and SFC Go_m to write a memorandum stating that they did not give him the pass. He was contacted by the inspector general referencing the counseling and later he was told that he was on the BC hit list. While he was at the Senior Leaders Course at Fort Lee, his equipment, file folders were pulled, and work history destroyed or missing, and the SAMS1-E (Standard Army Maintenance System-Enhanced) had been messed with, with no reports printing to reflect positive information. So he replaced the paper work with copies from AMSA 96 (Area Maintenance Support Activity-96) and fixed the SAMS1-E in 7 days, this action put him back on the BC hit list and he was told not to show up for Wednesday meetings until told to do so. He does not believe the applicant did all that he was said to have done. b. In a memorandum, dated 10 January 2013 BG Ol_m states that he developed a professional working relationship with the applicant during Operation Iraqi Freedom 2006 and strongly believes that the applicant was erroneously separated from the Army by his BC for reasons other than what was reflected on his separation counseling and subsequent board action. The applicant抯 dedication to service was displayed by his willingness to serve in various roles as mission required to include the role of acting first sergeant when his company first sergeant was in absence. The applicant took the role as acting battalion motor sergeant in the absence of the company抯 motor officer and assisted four line units under him in direct maintenance supporting, training, and establishing drivers training programs. The applicant抯 professionalism to service was reflected in his non-commissioned officers evaluation reports (NCOERs) which have been exceptional, resulting in him making the SFC list and his personal qualities and leadership skills as a senior non-commissioned Officer are without reproach. 4. A review of the applicant抯 active duty service record shows the following: a. His DD Form 214 shows that he enlisted in the USAR on 26 May 1998 and was discharged on 10 November 1998. b. His DD Form 214 shows that he enlisted in the Regular Army (RA) on 7 February 2001 and was discharged due to hardship on 5 August 2005. c. He enlisted in the RA on 16 February 2005. He completed DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 26 January 2006, that shows he extended his enlistment for 2 years with a new expiration term of service of 25 May 2009. d. He reenlisted in the USAR on 30 March 2010. Orders R-03-083985, dated 31 March 2010 orders the applicant to active duty in the Active Guard Reserve (AGR) status for 3 years effective 26 May 2010. e. His AHRC Form 4131 (Enlisted Record Brief) shows the primary MOS (PMOS) of 91C (Utilities Equipment Repairer (Heating and Air conditioning)). f. DA Form 2166 (NCO Evaluation Report), dated 8 January 2010 reflects a successful rating for the MOS 91B (Wheeled Vehicle Mechanic). Likewise, DA Form 2166, dated 20 January 2011 reflects a fair rating for the MOS 91B. g. His complete separation packet is not available for review. However, his records contains a separation worksheet, dated 21 January 2011, states that the board recommended separation of the applicant for the following reasons: * Demonstrating that he was unqualified for further military service because of unsatisfactory performance to wit, engaged in a pattern of behavior consisting of substandard performance * Demonstrating a pattern of misconduct, consisting of discredited conduct and conduct prejudice to good order and discipline * Demonstrated commission of a serious offense * Board recommended the separation under the provisions of AR 635-200 for the acts described above with a characterization of service as general under honorable conditions * Board does not recommend separation authority suspend the applicants recommended discharge h. A memorandum, dated 3 February 2011, request for suspension of discharge of the applicant by the senior defense counsel because the applicant抯 records show a high potential for full and continued effective duty. i. A memorandum, dated 3 February 2011, legal review of the applicant抯 board proceedings found that the proceedings were legally sufficient and that no errors were found and recommended approval with an under honorable conditions discharge. j. On 9 February 2011, Major General Dy initiated separation counseling under the provisions of AR 635-200 chapter 13 (unsatisfactory performance and chapter 14 (misconduct). He also approved the board抯 findings and directed separation with an under other than honorable discharge. The reason for the commander抯 action are: * The applicant is unqualified for further military service because of unsatisfactory performance by expressing his intent to disobey orders * The applicant sent derogatory and or accusatory statements regarding his chain of command * The applicant failed to maintain military maintenance duties * The Board found by a preponderance of evidence that the applicant demonstrated a pattern of misconduct by providing false information to superior officers by engaging in insubordinate and disrespectful conduct towards his chain of command, and or communicating a threat of physical harm to himself. k. Orders D-04-1900047, dated 21 April 2011, discharge the applicant from the US Army Reserve (USAR) with an effective date of 6 May 2011. l. A memorandum, dated 6 May 2011, states that the applicant will be removed from the SFC promotion list due to his discharge effective 5 May 2011. m. After an exhaustive search no counseling records or medical documents, or documents viewed by the separation board are available for the Board to review. n. He was discharged from active duty on 6 May 2011 under the provisions of AR 635-200, paragraph 14-12b Block 28 (Narrative Reason for Separation) pattern of misconduct with an under other than honorable discharge. Block 27 (Reentry Code) RE-4. (His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 5 years, 1 month, and 4 days of active duty service. 5. AR 601-210 (Regular Army and Reserve Components Enlistment Program) chapter 4-13 states that any prior service (PS) applicant enlisting from any service with an SPD or RE code requiring a waiver may not process until 90 days has elapsed from separation date. a. If applicant was separated from any component of the U.S. Armed Forces for any reason listed in this paragraph, a waiver may not be submitted until 24 months after the date of separation. The waiver authority is the CG, USAREC for RA and USAR applicants, and the Chief, NGB for ARNG applicants. * In lieu of trial by court-martial * Convenience of the Government * Misconduct * Qualitative Management Program * Personality disorder (CG, USAREC delegated to command surgeon or Chief, NGB) * Unsatisfactory performance * Unfitness * Unsuitability * Alcohol or drug abuse rehabilitation failure * Security. 8. AR 635-8 (Separation Documents) states that * Block 27 (Reentry Code) determines reentry eligibility and provides regulatory guidance on reentry codes * Block 28 (Narrative Reason for Separation), is based on regulatory or other authority and can be checked against the cross reference in AR 635𤂿. 9. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable; they are ineligible for enlistment unless a waiver is granted * RE-4 applies to Soldiers who are separated from their last period of service with a non-waiverable disqualification; they are ineligible for enlistment 10. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 11. In reaching its determination, the Board can consider the applicant抯 petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. * Serving as principal maintenance or operations NCO in maintenance battalion or higher level organization * Supervising personnel performing the duties of; Armament/Fire Control Maintenance Supervisor (MOSC 91K4O); M1 Abrams Tank System Maintainer (MOSC 91A4O); Artillery Mechanic (MOSC 91P4O); Bradley Fighting Vehicle System Maintainer (MOSC 91M4O); Maintenance Supervisor (MOSC 91X4O). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision without a personal appearance by the applicant. Additionally, the Board found relief was not warranted. The applicant抯 contentions and the letters of support were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the preponderance of the evidence, the Board agreed he received due process and the separation was just. The Board recommends not to amend the previous Board抯 decision to deny relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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 to amend the decision of the ABCMR set forth in Docket Number AR20150012788 on 16 November 2016. X CHAIRPERSON Signed by: 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. REFERENCES: 1. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge c. Chapter 14 of that regulation states members are subject to separation for a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. 2 AR 601-210 (Regular Army and Reserve Components Enlistment Program) chapter 4-13 states that any prior service (PS) applicant enlisting from any service with an SPD or RE code requiring a waiver may not process until 90 days has elapsed from separation date a. If an applicant was separated from any component of the U.S. Armed Forces for any reason listed in this paragraph, a waiver may not be submitted until 24 months after the date of separation. The waiver authority is the CG, USAREC for RA and USAR applicants, and the Chief, NGB for ARNG applicants. * In lieu of trial by court-martial * Convenience of the Government * Misconduct * Qualitative Management Program * Personality disorder (CG, USAREC delegated to command surgeon or Chief, NGB) * Unsatisfactory performance * Unfitness * Unsuitability * Alcohol or drug abuse rehabilitation failure * Security. 3. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provides the evaluation for physical fitness of Soldier who may be unfit to perform their military duties because of physical disability. a. Paragraph 7-4 (Requirement for periodic medical examination and physical evaluation board evaluation) states a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired. b. paragraph 7-11 (Removal from the Temporary Disability Retired List) states that MILPERCEN (Military Personnel Center) will remove a member from the TDRL at the end of the 5 year statutory period or sooner upon determination by the Secretary of the Army that the member抯 disability has become permanent (Stabilized), or has improved to the extent that he is less than 30% disabled, or he is physically fit for return to du ty. c. Paragraph 7-20 (Physical evaluation board processing) states the combined percentage rating at the time of re-evaluation is at least 30%. 2. Title 10 USC 1203 (Regulars and members on active duty for more than 30 days: separation) states that: (a) Separation.-Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in section 1201(c)(3) of this title, the member may be separated from the member's armed force, with severance pay computed under section 1212 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b). (b) Required Determinations of Disability.-Determinations referred to in subsection (a) are determinations by the Secretary that- (1) the member has less than 20 years of service computed under section 1208 of this title; (2) the disability is not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; (3) based upon accepted medical principles, the disability is or may be of a permanent nature; and (4) either- 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//