IN THE CASE OF: 

		BOARD DATE:	    26 June 2014

		DOCKET NUMBER:  AR20130018713 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* an upgrade of his general discharge to an honorable discharge
* correction of item 12f (Foreign Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show additional service credit for his two deployments to Iraq

2.  The applicant states he was awarded the Combat Action Badge for actions during his first and second deployments to Iraq.  He received a general discharge under honorable conditions for patterns of misconduct.  The misconduct was for missing one formation.  He had undergone surgery on that day and he was excused for the day by the team leader; however, the squad leader disapproved the absence.  Then he was "chaptered out."  He was unaware of the procedures for correcting military records.  This injustice has prevented him from obtaining government careers and receiving educational benefits from the GI Bill which he paid into the first year of his military service.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army in pay grade E-1 on 4 June 2002.  He was promoted to pay grade E-4 on 6 June 2004.

3.  On 1 August 2005, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on 27 May 2005.  His punishment included a reduction to pay grade E-3 and forfeiture of pay, both suspended to be automatically remitted if not vacated by 28 January 2006; 14 days of extra duty, and 10 days of restriction.  He elected not to appeal.

4.  On 22 December 2005, the suspension to reduction to pay grade E-3 and forfeiture of pay was vacated based on the applicant's violation of a general regulation on 3 and 21 November 2005 by providing false information.

5.  On 14 and 16 February and 20 March 2006, he received counseling for failing to be at his appointed place of duty and failing to obey a lawful order.

6.  On 28 March 2006, a bar to his reenlistment was initiated against him as a result of his NJP and counseling.

7.  He again received several counselings between June and August 2006 for his bar to reenlistment, failing to maintain a clean-shaven appearance, separation from active duty, being late for formation, lying to his chain of command, and failing to appear for formation.

8.  On 24 August 2006, he again accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

9.  A Report of Mental Status Evaluation, dated 24 August 2006, shows he was cleared for any administrative action deemed appropriate by the command.

10.  On 18 September 2006, the applicant's unit commander advised the applicant that he was initiating action to separate him for a pattern of misconduct under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, and recommending a general discharge.  He advised the applicant of his rights.

11.  On 19 September 2006 after consulting with counsel, he acknowledged receipt of the unit commander's notification.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He waived his rights and elected not to submit a statement in his own behalf.

12.  On 25 September and 4 October 2006, the applicant's unit and battalion commanders recommended the applicant's separation.

13.  On 18 October 2006, the separation authority approved the applicant's discharge and directed the characterization of his service as general under honorable conditions.

14.  He was discharged accordingly in pay grade E-3 on 8 November 2006.  He was credited with completing 4 years, 5 months, and 3 days of net active service with no record of lost time.

15.  His DD Form 214 shows in:

* item 12f – 0001  11  20 (1 year, 11 months, and 20 days)
* item 18 (Remarks) – SERVICE IN OPERATION IRAQI FREEDOM (IRAQ) 20030406-20040405//SERVICE IN OPERATION IRAQI FREEDOM (IRAQ) 20050123-20060112

16.  On 4 September 2013, the Army Discharge Review Board denied his request for an upgrade of his discharge.

17.  An email from the Defense Finance and Accounting Service, dated 19 June 2014, confirmed he received hostile fire pay/imminent danger pay for service in Kuwait from 24 January 2005 through 11 January 2006.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	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 meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization will be clearly inappropriate.

19.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for preparation of the DD Form 214 and stated:

* for item 12, enter the total amount of foreign service completed during the period covered by the DD Form 214
* for item 18 for an active duty Soldier deployed with his/her unit during their continuous period of active service, enter "SERVICE IN (name of country deployed) FROM (inclusive dates, YYYYMMDD-YYYYMMDD)"

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served twice in Iraq for a total of 1 year, 11 months, and 20 days.  He was issued a DD Form 214 which properly reflects his two deployments to Iraq in items 12f and 18.  There is no evidence of record and he provided none showing he served in Iraq for other than the periods recorded on his DD Form 214.

2.  The evidence shows the applicant received multiple counseling, two NJPs, and a bar to reenlistment during his period of service.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct and recommended a general discharge.

3.  It appears that he was separated in pay grade E-3 and issued a general discharge based on his overall record of service, not just missing one formation.  Normally such service would have been characterized as under other than honorable conditions.

4.  His contentions were carefully considered.  Based on the available evidence, there is no basis for the upgrade of his general discharge under honorable conditions to a fully honorable discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

5.  Without evidence to the contrary, it appears his 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.

6.  His desire to have his discharge upgraded so he can qualify for government careers and educational benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for employment or benefits administered by other agencies.  Each case is considered on its own merits.

7.  In view of the foregoing, there is no basis for granting him the requested relief.

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 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)                                         AR20130018713



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ABCMR Record of Proceedings (cont)                                         AR20130018713



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