BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130012456 


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 requests and statements to counsel and provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request for an upgrade of his under other than honorable discharge to a general discharge.

2.  Counsel states:

   a.  Upon review of the applicant's record he noticed some glaring irregularities that he believes need to be addressed.  He believes the evidence he has presented is certainly new evidence because the Board obviously did not review those documents.  The documents contain specific material from which a valid argument has been developed to assist the applicant in his pursuit of an upgrade of his discharge.

   b.  Paragraph 2 of the applicant's Record of Proceedings (ROP) is somewhat incomplete.  The applicant's record shows he was assigned to Headquarters and Headquarters Battery (HHB), 1st Battalion, 5th Field Artillery Regiment; was subsequently assigned to Battery B, 1st Battalion, 5th Field Artillery Regiment, on 23 January 1981 performing duties as a 13B (cannon crewman); and he was advanced to pay grade E-2.  The applicant remained assigned to this unit until he was reassigned to the Retraining Brigade, Fort Riley, KS, on 18 September 1981.
   c.  Paragraph 4 of the ROP shows the results of the summary court-martial (SCM) the applicant received on 16 September 1981.  Two of the specifications pertain to single incidents on 5 and 8 September 1981.  The point is that there were only two incidents that led to this action and not three.  He is enclosing a copy of the SCM that shows the actual charges more clearly than the reviewed DA Form 2-2 (Insert Sheet to DA Form 2-1 (Personnel Qualification Record – Part II).

   d.  As a result of the applicant's SCM, he was imprisoned for a period of 23 days.  Upon completion of his confinement, it appears he was reassigned to the Retraining Brigade at Fort Riley.  This is where he questions the legality of the actions that led to the applicant's separation.  In reviewing Army Regulation 27-10 (Legal Services – Military Justice), paragraph 5-31 (Assignment of Post-Trial Soldiers in Confinement or on Excess Leave), he finds the applicant never should have been sent to the Retraining Brigade.  

   e.  The reference clearly states that personnel accountability for post-trial Soldiers in confinement will be administratively transferred immediately after trial from their unit to the appropriate personnel control facility of the designated regional confinement facility, except those Soldiers who receive a sentence of 120 days (4 months) or less of confinement, without a discharge, who will remain assigned to their parent unit.  This did not happen.  The applicant was incorrectly assigned to the Retraining Brigade in violation of the referenced directive.

   f.  Since the unit assignment policies were violated and the applicant should have remained assigned to his parent unit, the Retraining Brigade violated its authority by effecting the discharge of the applicant.  In that case, he must question the validity of the discharge based on the requirements of Army Regulation 27-10 that should have been done by the applicant's unit of assignment which was Battery B, 1st Battalion, 5th Field Artillery.

   g.  Paragraph 7 of the ROP indicates that the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly in command, for failing to obey a lawful order, and for displaying disrespect toward a senior noncommissioned officer (NCO) on 28 October 1981. When applying the inappropriate assignment to the aforementioned unit, he contends that the NJP that resulted from that single incident would not have occurred had the applicant been returned to his parent unit.  The ROP does not detail the specific facts or circumstances of this Article 15.  He is enclosing a copy of three Training Progress Notes that appear to be the prelude to the offenses.  Again, these three issues are related to a single incident at a single time and not several separate incidents.
   
   h.  Paragraph 8 of the ROP states that the specific facts and circumstances surrounding the applicant's discharge processing are not available for review in this case.  The Board made a decision based on an assumption from the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant was discharged under Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-33b(1), for frequent incidents of a discreditable nature with civil or military authorities.  The decision states that it is "presumed" that the Soldier's separation processing was accomplished in compliance with applicable regulation with no indications of procedural error which would have jeopardized his rights.

   i.  Very simply, he (i.e., counsel) was a unit first sergeant in Germany during that same period of time.  They just didn't discharge Soldiers for such menial reasons during that era nor did they subject them to courts-martial for "failing to be at ease" when they were told.  There were better ways of dealing with those issues. Had he, his commanders, or one of his subordinate NCOs handled that situation in the same way, he can assure the Board that they would have been relieved from duties themselves because their leadership ability would have certainly been questioned.

   j.  Later, after becoming a command sergeant major, at commands up to and including above Corps level, he (counsel) would never tolerate their leadership chain treating their Soldiers in that manner.  That being said, he cannot change what has already occurred; however, he can request reconsideration of the applicant's discharge based on a determination of what occurred that led to the discharge.  The assumption is far from factual simply because of a quoted paragraph of a regulation on a DD Form 214.

   k.  The incidents for which the applicant was discharged involved only two actual incidents (involving three specifications each); therefore, he must question if this authority is properly shown on the applicant's discharge.  He believes the U.S. Army would be hard pressed to show that the two incidents rise to the level of "frequent."  They really should have been a single incident since the applicant should never have been a part of the Retraining Brigade.  By being sent to that unit, he already had a strike against him which more than likely set the stage for treatment from which he could not possibly overcome.  

   l.  He fails to see how that could be fair to the applicant when he shouldn't have been there in the first place.  The atmosphere the applicant experienced at the Retraining Brigade was one that was actually worse than basic training.  Common knowledge of the Retraining Brigade at that time was it was a continuation of the punishment imposed by the court-martial; therefore, inmates were sent there after completing much longer sentences than the applicant did.  The applicant had no chance of succeeding to begin with.  
   m.  A review of the facts and circumstances that are available clearly shows that the applicant's conduct does not rise to the level of being under other than honorable.  He will agree that the applicant's conduct was not completely honorable, but neither was it under other than honorable.  He believes the applicant's discharge should be upgraded to a general discharge because his record clearly show he completed his One Station Unit Training and performed satisfactorily in his unit of assignment for a period of 8 months before the bottom fell out of his career.  It appears that circumstances and probably the lack of effective leadership in the applicant's unit of assignment was more responsible for his slide that his ability and desire to be a good Soldier.

3.  Counsel provides copies of the applicant's DA Forms 2-1 and 2-2, SCM Number 35, three Training Progress Notes, DD Form 214, and previous ROP.

CONSIDERATION OF EVIDENCE:

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 AR20120001630 on 16 August 2012.

2.  Counsel stated the applicant's ROP contained several irregularities and the evidence he was presenting was certainly new evidence the Board did not previously review.  This is considered new argument and evidence and will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 23 September 1980, for 6 years, and he held military occupational specialty 13B.  He was assigned to Company B, 1st Battalion, 5th Field Artillery, Fort Riley, KS, on 23 January 1981. He was advanced to pay grade E-2 on 23 March 1981.

4.  On 21 August 1981, an approved flagging action was initiated against him to block promotion to pay grade E-3 because his duty performance had been such as not to warrant promotion consideration at that time.  

5.  On 16 September 1981, he was convicted by an SCM of one specification each of failing to obey a lawful order from his superior NCO, on 5 and 8 September 1981, and failing to obey a lawful order from his superior commissioned officer on 8 September 1981.  He was sentenced to a reduction to pay grade E-1, a forfeiture of pay, and 30 days confinement at hard labor.  

6.  SCM Number 8, dated 16 September 1981, shows the convening authority approved and ordered the sentence duly executed.

7.  Two DA Forms 4187 (Personnel Action) show the applicant was placed in confinement on 16 September 1981, was present for duty on 9 October 1981, and the form was sent to the Commander, 5th Unit, Retraining Brigade.

8.  Section VII (Current and Previous Assignments) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was assigned to the Trainee Brigade on 9 October 1981.

9.  Counsel provided copies of the applicant's:

   a.  Training Progress Notes, dated 28 October 1981, for the applicant's argumentative behavior.  The form stated that the applicant was yelling, cursing, and making threats toward another Soldier.  When the applicant was told to be at ease, he kept on smart mouthing until the drill sergeant told him to be at ease. It was also stated the applicant had had problems with his mouth and it seemed that if he didn't have things go his way he wanted to kick-off in everyone's ass.   That seemed to happen about every third day, then he slowed down, and then started right back again and again.

   b.  Training Progress Notes, dated 28 October 1981, for the applicant being disorderly in command, being disrespectful, and communicating a threat. 

   c.  Training Process Notes, dated 29 October 1981, for the primary counselor's recommendation for an Article 15.  The primary counselor stated he was recommending the applicant receive an Article 15 for the offenses.

10.  On 8 November 1981, while assigned to the 4th Unit, 2nd Battalion, Retraining Brigade, he accepted NJP under Article 15, UCMJ, for being disorderly in command, failing to obey a lawful order, and being disrespectful in language towards his superior NCO on 28 October 1981.  

11.  The applicant's record is void of the complete facts and circumstances pertaining to his discharge; however, his record contains the following:

   a.  A memorandum, dated 3 December 1981, wherein the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

   b.  A DD Form 214 showing he was discharged in pay grade E-1 on 8 December 1981, under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authorities.  His service was characterized as under other than honorable conditions.  He completed 1 year, 1 month, and 23 days of net active service with time lost from 16 September through 8 October 1981.

12.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 1-32b – commanders exercising general court-martial jurisdiction were authorized to convene boards and order separation under chapters 13 and 14.

	b.  Chapter 14, paragraph 14-33b(1) established policy and prescribed procedures for separating members for frequent incidents of a discreditable nature.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  An under other than honorable conditions discharge was normally considered appropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

14.  Army Regulation 27-10 dated 1 September 1982, chapter 5, prescribed the other procedures related to courts-martial.  The regulation stated in:

   a.  Paragraph 5-31 – pertained to special court-martial (SPCM) records not involving bad conduct discharges and stated the record of trial by an SPCM need contain only a summarized report of the testimony, objections, and other proceedings.

   b.  Paragraph 5-38(4) – stated records of trial by an SCM that did not include an approved sentence to a bad conduct discharge would be reviewed by a Judge Advocate.

15.  Army Regulation 27-10 (dated 3 October 2011), paragraph 5-31, prescribes the current policy for the administrative transfer for post-trial Soldiers in confinement after trial from their unit to the appropriate personnel control facility.


DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was convicted by an SCM of one specification each of failing to obey a lawful order from his superior NCO on two separate dates and failing to obey a lawful order from his superior commissioned officer on another date.  That is three offenses, not two.  He was sentenced to a 30-day confinement.  Upon his release he was assigned the Trainee Brigade.

2.  He was subsequently punished under Article 15 for being disorderly in command, failing to obey a lawful order, and being disrespectful in language towards his superior NCO.  He did not appeal the punishment.

3.  Counsel contends the proper authority did not discharge the applicant.  The version of the regulation cited by counsel does not pertain to the timeframe of the applicant's discharge.  The regulation in effect at the time of the applicant's discharge stated commanders exercising general court-martial jurisdiction were authorized to orders separations under chapter 14 of the regulation.  In accordance with the regulation in effect at the time the commander had the authority to order the applicant's under other than honorable conditions discharge.   

4.  While it is unclear why and how the applicant came to be assigned to the Retraining Brigade, he was assigned to that unit.  Counsel and the applicant have not provided sufficient evidence showing this assignment was unjust or erroneous at the time.  

5.  Neither counsel nor the applicant have submitted sufficient evidence showing he was erroneously or unjustly prevented from completing his term of service.  Without sufficient evidence to the contrary, it appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, the applicant is not entitled to an upgrade of his discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120001630, dated 16 August 2012.



      _______ _   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)                                         AR20130012456



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ABCMR Record of Proceedings (cont)                                         AR20130012456


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