IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20120022166 


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 the following corrections to his military records:

* removal of three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File
* upgrade his general discharge to honorable
* change his narrative reason for discharge
* change his reentry eligibility (RE) code from 3 to 1
* a fair evaluation of his medical records

2.  The applicant states, in effect:

   a.  He has experienced sleep problems since his first deployment to Iraq in 2004.  He has experienced nightmares, bad dreams, sleep walking, and waking up multiple times at night with hot flashes and heavy sweating.  He has problems with his feet, ankles, knees, back, traumatic brain injury, post-traumatic stress disorder, hearing loss, arthritis, joint pain, and hand/wrist pain since he joined the military.  He has a lot of pain and discomfort and he is not able to walk, run, and/or stand for a long period of time.  These conditions have seriously impacted his ability to find employment, continue his education, or improve himself and his family's future.

   b.  He is aware that some actions bear consequences but he does not believe he should be prevented from bettering himself or making things better for his family.  The type of discharge he received denies him opportunities.  He plans to become a police officer among other things, but the type of discharge he was given places a dent in his long-term goals.

   c.  He believes his discharge is unjust because his medical conditions played a big role in his actions.  The Department of Veterans Affairs (VA) has determined that he is 80 percent disabled.  His VA medical records also show that he was injured during his military career; therefore, he should receive the benefits he and his family deserve.  He requests a fair evaluation of his medical records.

   d.  He was given two field grade Article 15's for falling asleep on his post and falsely altering a sworn statement.  However, he should not have been put on guard duty due to his medical condition.  He also received a company grade Article 15 for unauthorized wear of an Army Commendation Medal; however, he has proof the award was approved for him.

3.  The applicant provides:

* a certificate awarding him the Army Commendation Medal
* a certificate and orders awarding him the Purple Heart
* orders for the Meritorious Unit Commendation (Army) and Valorous Unit Award
* email, dated between 12 and 19 July 2008
* sworn statements dated 13, 20, and 21 July 2008
* DA Form 4856 (Developmental Counseling Form), dated 13 July 2008
* 11 character references, dated between 20 February and 1 March 2012
* two letters, dated 4 September 2009 and 17 October 2012, from the VA Regional Office, Denver, CO
* Seventeen certificates of training completed between 1 August 2009 and 17 September 2010
* An Associate of Applied Science Degree in Criminal Justice Patrol
* college transcripts

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.  On 12 February 2003, he enlisted in the Regular Army (RA).  During this period of service he served in Iraq from 11 November 2004 - 1 April 2005.

3.  The Army Commendation Medal certificate the applicant provided contains Combined Joint Special Operations Task Force Permanent Order Number 
135-11, dated 15 May 2005.  The period of the award was 15 November 2004 to 1 April 2005.

4.  He immediately reenlisted for 6 years on 4 October 2006.  He served in Iraq from 22 May 2006 – 11 November 2006 and from 2 December 2007 – 
11 November 2008.  

5.  A DA Form 2627, dated 27 February 2007, included in his separation package, shows he accepted nonjudicial punishment (NJP) for:

* wrongfully and without authority wearing on his uniform an Army Commendation Medal
* being derelict in the performance of his duties by failing to have another Soldier input an Army Commendation Medal in his name into his AMHRR
* he did not appeal the NJP

6.  On 1 March 2008, he was promoted to sergeant (SGT)/pay grade E-5.

7.  A DA Form 2627, dated 22 April 2008, filed in the restricted section of his AMHRR shows, while serving in pay grade E-5, he accepted NJP at or near the Forward Operating Base (FOB) War Eagle, Iraq, for:

* going, without authority, from his duty section with the intent to abandon the same
* leaving his post as a sentinel at tower three in a time of war before he was regularly relieved
* his punishment included reduction to pay grade E-4 (suspended until 
22 October 2008)
* the DA Form 2627 was directed to be filed in the restricted portion of his AMHRR



8.  On 13 July 2008, he was formally counseled for failure to go to his appointed place of duty at the time prescribed.  He was advised that continued behavior of the same or of a similar nature could result in initiation of discharge action under the provisions of chapter 14, Army Regulation 635-200.

9.  A DA Form 2627-2 (Record of Supplemental Action Under Article 15, UCMJ)), dated 15 July 2008, in the restricted section of the applicant's AMHRR shows that the portion of the applicant's suspended punishment imposed on 22 April 2008 that provided for reduction to pay grade E4 was vacated and he was reduced to specialist/pay grade E-4.  The reason for the vacation was the applicant's failure to go to his appointed place of duty at the time prescribed on 13 July 2008.  

10.  A DA Form 2627, dated 14 August 2008, which is included in the separation package, shows he accepted NJP for uttering a document with the intent to defraud (making a false statement).

11.  On 25 September 2008, the applicant was mentally evaluated by a captain, U.S. Air Force, Clinical Psychologist:  

	a.  The psychologist indicated that the applicant's behavior was normal, he was fully alert, he was fully oriented, and his mood was unremarkable.  His thinking process was clear, his thought content was normal, and his memory was good.  

	b.  The psychologist noted the applicant was mentally responsible and he had the mental capacity to understand and participate in any administrative action deemed appropriate by his commander.  Further treatment was not deemed necessary and he was judged clinically psychologically stable and not at significant risk for dangerous behavior.  

	c.  The psychologist stated that while the applicant appeared to exhibit some symptoms of depression in addition to sleep problems at the time of his past violations of the UCMJ, this does not account for acts of misconduct that led to numerous disciplinary actions against him. 

12.  The applicant's commander notified him he was initiating action to separate him under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct with the issuance of a general discharge under honorable conditions.  


13.  The commander stated the reasons for initiating the separation action were the applicant's:

* failure to go to his appointed place of duty on several occasions
* dereliction of duty
* forgery
* leaving his appointed post as a sentinel
* disobeying an order
* wrongfully wearing an award
* making a false official statement

14.  The commander advised the applicant of his right to:

* consult with counsel
* submit written statements in his own behalf
* obtain copies of documents that would be sent to the separation authority

15.  The commander further advised the applicant that he may waive any of these rights in writing and he could withdraw any waiver of rights at any time prior to the date the discharge authority approved his discharge.  The commander advised the applicant that failure to respond to the letter of notification constituted a waiver of his rights.  

16.  The applicant acknowledged receipt of the separation notification and submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge or an under other than honorable conditions discharge.  He acknowledged he understood that if he was issued a less than honorable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws to include but not limited to the Montgomery G.I. Bill.  The applicant indicated that he was submitting statements in his own behalf.  

17.  A Judge Advocate General’s Corps captain countersigned the applicant's statement indicating he had counseled the applicant concerning the basis for his contemplated separation action and its effects, the rights available to him, and the ability to waive these rights.

18.  On 21 October 2008, the applicant requested that he be allowed to continue to serve in an active duty status.

	a.  He acknowledged he had made some mistakes and he wished he could take back what had happened, but he learned a valuable lesson.  

	b.  He requested a second chance so he could continue his mission in Iraq, and show his family, the Army, and himself that he could be an outstanding Soldier.

	c.  He asked to be considered for an honorable discharge so he could continue his education and be able to seek employment to provide for his family ensuring them a better future.

19.  The applicant's commander requested a waiver of further rehabilitative requirements and recommended that he be discharged under the provisions of chapter 14, Army Regulation 635-200 due to a pattern of misconduct.  The commander stated it was not feasible or appropriate to accomplish any other disposition because the applicant was unlikely to overcome his deficiencies and be a viable member of the unit.  Continued presence in the unit would reduce morale, readiness, and unit effectiveness.

20.  The appropriate authority approved the recommendation for discharge due to a pattern of misconduct and directed that the applicant be given a general discharge.

21.  On 12 December 2008, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of a pattern of misconduct with a general discharge.  He had completed 5 years, 10 months, and 1 day of active service.

	a.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 215 (Correction to the DD Form 24) show his awards as the:

* Combat Action Badge
* Army Commendation Medal (2nd Award)
* Army Achievement Medal (3rd Award)
* Army Good Conduct Medal
* Valorous Unit Award
* Iraq Campaign Medal with 2 bronze service stars
* Global War on Terrorism Expeditionary Medal
* National Defense Service Medal
* Parachutist Badge
* Driver and Mechanic Badge with "W" Driver Bar
* Basic Marksman Marksmanship Qualification Badge

	b.  Block 26 (Separation Code) of the applicant's DD 214 contains the entry, JKA.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) specifies the narrative reason for the SPD code of JKA as "Pattern of Misconduct."

22.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 8 May 2009, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.

23.  The applicant provided U.S. Army Human Resources Command Permanent Order 336-12, dated 2 December 2011, awarding him the Purple Heart for wounds received as a result of hostile action on 29 April 2008 in Iraq.

24.  He submitted 11 letters of reference of which only one was signed.  The letters are all from noncommissioned officers who served with the applicant at some time during his career.  They attest that he is:

* a natural leader who knows how to follow an order
* a person of good moral character 
* a team player, a professional, willing to help at a moment's notice
* an excellent leader who shared his knowledge from multiple combat deployments

25.  He submitted 17 certificates of training completed between 1 August 2009 and 17 September 2010, an Associate of Applied Science Degree in Criminal Justice Patrol, and college transcripts showing his achievements since being discharged.

26.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that an NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the NJP process by: 

* evaluating the case to determine whether proceedings under Article 15 	should be initiated  
* determining whether the Soldier committed the offense(s) where 	Article 15 proceedings are initiated and the Soldier does not demand 	trial by court-martial 
* determining the amount and nature of any punishment, if punishment 	is appropriate

	b.  Paragraph 3-36 states that when punishment is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action would be recorded on a DA Form 2627.  

		(1)  For Soldiers in pay grade E-4 and below (prior to punishment) the original DA Form 2627 will be filed locally in unit nonjudicial punishment or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial (GCM) convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 5 of DA Form 2627 as "Not Applicable (N/A)."  When the transfer of a Soldier to a new GCM jurisdiction is for the purpose of receiving medical treatment, the DA Form 2627 will accompany the Soldier to the new GCM.  The 2-year rule will apply in this situation.

		(2)  For all other Soldiers, the original DA Form 2627 will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file the original DA Form 2627 on the performance section or the restricted section in the AMHRR will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by any superior authority.  However, the superior authority cannot direct that a DA Form 2627 be filed in the performance section if the imposing commander directed it to be filed in the restricted section.  The imposing commander's filing decision will be indicated in item 5, DA Form 2627.  A change in the filing decision should be recorded in block 9, DA Form 2627.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the AMHRR.  It states applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

27.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) states that once placed in the AMHRR, a document becomes a permanent part of that file.  The restricted file of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents in this file include those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods.

28.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-16 states when a Soldier's conduct or performance becomes unacceptable, the command will ensure that a responsible official formally notifies the Soldier of his deficiencies.  At least one formal counseling session is required before separation proceedings may be initiated.  The number and frequency of formal counseling sessions are discretionary.

	b.  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.

	c.  Chapter 14 establishes policy and prescribed procedures for separating members for misconduct.  Paragraph 14-12b provides for the separation of a Soldier due to a pattern of misconduct.  A discharge under other than honorable conditions is normally appropriate for a Solder discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

29.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE codes, including RA RE codes.  

	a.  RE code 1 applies to persons completing their term of active service who are considered qualified to reenter the U.S. Army.

	b.  RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waiverable. 

30.  The SPD/RE Code Cross-Reference Table, dated 31 March 2006, shows the appropriate RE code for the SPD code of JKA is 3.

DISCUSSION AND CONCLUSIONS:

1.  On 7 February 2007, he received NJP for wrongfully wearing an Army Commendation Medal and dereliction in the performance of his duties.  He has submitted evidence that he was in fact awarded the Army Commendation Medal in 2005.  For reasons unknown, he did not appeal his NJP.  

2.  Although the evidence shows the applicant was not guilty of wrongfully wearing an Army Commendation Medal, his subsequent misconduct shows there was sufficient cause for processing him for discharge under the provisions of chapter 14 of Army Regulation 635-200.

3.  DA Forms 2627, dated 27 February 2007 and 14 August 2008, recorded NJP the applicant received in pay grade E-4.  Based on the regulation, these forms are not filed in his AMHRR.  Therefore, there is no correction to be made in reference to these two NJP.

4.  The DA Form 2627, dated 22 April 2008, recorded NJP he received in pay grade E-5.  As directed by the imposing commander, this DA Form 2627 is filed in the restricted section of his AMHRR.

5.  The suspended reduction in rank imposed on 22 April 2008 was vacated on 15 July 2008 and he received additional NJP on 14 August 2008.  Therefore, the intended purpose of the NJP had clearly not been served.  The applicant did not submit any evidence of error or injustice.  Based on the evidence of record, applicable law and regulations, it is concluded that the DA Form 2627, dated 
22 April 2008, was appropriately issued and filed in restricted portion of the applicant's AMHRR.  There is no evidence of an error or injustice.  There is insufficient clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from his AMHRR.

6.  Although he mentions numerous medical conditions, there is no evidence any of these conditions contributed to his acts of misconduct.  The clinical psychologist had indicated he exhibited some symptoms of depression in addition to sleep problems.  However, the clinical psychologist specifically stated this did not account for his acts of misconduct that led to disciplinary actions.

7.  It is apparent the applicant's commander considered his entire record of service including three tours in Iraq and the awards he received in that he recommended a general discharge instead of an under other than honorable conditions discharge that was normally considered appropriate under the provisions of chapter 14.

8.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.  Therefore, the reason for his discharge and the SPD code JKA are correct.

9.  Based on the SPD/RE Code Cross-Reference Table, dated 31 March 2006, the RE code for the SPD code of JKA is 3.  Therefore, his RE code is correct.

10.  The applicant had been promoted to SGT, which was a position of authority and responsibility.  In promoting the applicant to SGT, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a SGT, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  The applicant violated this special trust and confidence.  Therefore, in view of the applicant's abuse of a position of trust there is no basis to upgrade the applicant's discharge to fully honorable.

11.  The reference letters he provided all attest to positive attributes of the applicant.  However, they do not address his misconduct or any lessons he should have learned.  After his NJP on 22 February 2008, his record clearly shows a decline in behavior, including the vacation of his suspended reduction and subsequent NJP.

12.  The applicant's post-service conduct is noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge.  The ABCMR does not upgrade discharges based on the passage of time.

13.  In view of the above, there is an insufficient basis grant relief in this case.

BOARD VOTE:

________  ________  ________  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 that 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.




ABCMR Record of Proceedings (cont)                                         AR20120022166



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ABCMR Record of Proceedings (cont)                                         AR20120022166



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