IN THE CASE OF:  

		BOARD DATE:  11 December 2014	  

		DOCKET NUMBER:  AR20140006313 


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 upgrade of his general discharge.

2.  The applicant states:

	a.  "…the discharge must be changed because of the error in the discharge pertaining to a regulation, statute, constitutional provision or other source of law that requires a determination whether under the circumstances of the case, action by military authorities was arbitrary, capricious or an abuse of discretion."

	b.  "…in a sworn statement Staff Sergeant Y---- determined arbitrarily, by self-will that he did not believe me.  This led to an undeserving article 15.  Staff Sergeant Y-----, in authority that constitute[d] a clear abuse of such authority and that, amounting to prejudicial error contributed to the decision to discharge or to the characterization of service.  The actions of the command directly conflicts with Article 92.3(d):  A person is not derelict in the performance of duties if the failure to perform those duties is caused by ineptitude rather than by willfulness, negligence or culpable inefficiency, and may not be charged or otherwise punished."

3.  The applicant provides copies of – 

*  statement by Zarin F. M----, Common Noncommissioned Officer (NCO) for 7th (Cavalry) 101st Aviation Regiment
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 19  February 2003
CONSIDERATION OF EVIDENCE:

1.  On 2 August 2000, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty (MOS) 31U (Signal Support Systems Specialist).  He progressed normally, was advanced to pay grade E-4, and deployed to Afghanistan In January 2003.

2.  A 12 February 2003 sworn statement by Staff Sergeant Y---- relates, "On 12 Feb 03 I waited to get on the internet to check my email.  I waited while Chaplain Logan checked his and while (the applicant) checked his.  After (the applicant) left I went to the computer and noted on the Desktop there were shortcuts to questionable sites.  I showed these links to SGT E-----and we checked the properties of each site to see when they were checked.  Then we looked under the Explorer history for [the] internet and saw other questionable sights [sic] to include MP3 download sights [sic].  After we asked (the applicant) about the issues of each shortcut and history items for the time he was using the computer, he denied all the sights [sic] except the MP3 sights [sic].  I told him to collect his things and leave the shop because I did not believe him.  After studying the history and time logs we decided to counsel him and turn it over to his command.  SGT E-----started the counseling statement

3.  A DA Form 4856 (Developmental Counseling Form), dated 12 February 2003, shows:

	a.   Part I, identifies the applicant as the individual being counseled.

	b.  Part II (Background Information) states the purpose of the counseling is, "Violation of Article 92, Uniform Code of Military Justice (UCMJ) and states, "Fact:  On 12 July 2003, (the applicant) was using a government computer to go to unauthorized web sites.

	c.  Part III (Summary of Counseling) states:

Key Points of Discussion: You were using a government computer to surf pornographic material and or download MP3s on the internet.  You know that surfing the internet for porn or downloading MP3s is against Army regulations.  Furthermore you attended an inbrief which specifically touched on this issue.  You disregarded the information and policies discussed in the inbrief.  When SSG Y----- questioned you about the shortcuts and favorites added to the computer during the time you were on it, you denied the fact that you created the shortcuts and added the illegal sites to the favorites list.  MP Music search and Adult were also added during this time.  These were also added to the favorites list.  You were the only person on this computer at this time, SSG Y----- got on the computer right after you and noticed the new shortcuts, and then questioned you about these new shortcuts.  The properties on the shortcuts and the history and cookies directly contradict your statement.  The log under COOKIES and HISTORY clearly show these sites were visited by the computer during the time you were using it.  The Squadron SIGO clearly warned of visiting websites like these in the inbrief.  He also stated that the internet would not be used for downloading music and MP3s.  I'm recommending you to your unit for UCMJ.

4.  The applicant refused to sign the counseling form.  SGT E-----, the Communications Shop Foreman, signed as the counselor.

5.  A DA Form 2627 shows:

	a.  The applicant was informed, on 12 February 2003, that the battalion commander was considering whether to impose nonjudicial punishment (NJP) under the provisions or Article 15, UCMJ for violation of a lawful general regulation , to wit, NIPRNET (Non-secure Internet Protocol Router Net) Use Policy, dated 31 May 2002, paragraph (c)(5) by obtaining sexually explicit material on a government computer.  The applicant was advised his rights included that  – 

* he did not have to make any statement, but if he did they might be used against him
* the commander had made no decision as punishment and that the commander would not impose punishment if he was convinced beyond a reasonable doubt that the applicant had committed an offense
* the applicant could request a person to speak in his behalf, he could present witnesses or other evidence to show that he shouldn't be punished or that the punishment should be light
* the commander would consider everything the applicant presented    before making a decision
* the applicant could demand trial by court-martial
* he could consult with counsel in the process of deciding what he wanted to do 

	b.  On 19 February 2003, the applicant requested an open hearing and did not ask that someone speak on his behalf.

	c.  The battalion commander imposed punishment in the form of reduction to pay grade E-3, forfeiture of $721 pay per month for 2 months to be automatically remitted if not vacated by 21 April  2003, and extra duty for 45 days.

	d.  The applicant did not appeal.

	e.  The NJP packet includes copies of the NIPRNET policy and printouts showing the internet sites and content therein that the applicant had visited. 

6.  A counseling form dated 1 March indicated the assigned extra duty had been "KP" from 20 February through 1 March 2003.  When the supervisor checked he discovered the applicant had been there only 3 days.  Another counseling form on the same date concerned the applicant's lying to his supervisor about when he had last reported for "KP" duty.

7.  The suspended forfeiture of pay was vacated due to the applicant's absence from his place of duty.

8.  A DA Form 4856 shows the applicant was counseled, on 27 March 2003, for leaving his place of duty without notifying his supervisor.  He was reminded of the importance of accountability and warned about the first General Order about remaining at his assigned post until relieved.  He was also counseled that continued behavior of this sort could lead to his elimination from the Army.

9.  On 11 April 2003, the applicant was counseled about failure to obey a lawful order.  The DA Form 4856 shows the applicant had been ordered to set his alarm clock in time to wake an NCO in time for him to escort the applicant to his place of duty.  The applicant agreed with the counseling.

10.  The applicant accepted NJP on 18 April 2003 for being absent from his place of duty and making a false official statement.  The punishment consisted of reduction to pay grade E-1. 

11.  A Mental Status Evaluation conducted on 7 May 2003 in conjunction with a separation physical examination found the applicant's behavior normal.  He was fully alert and oriented, displayed an unremarkable affect, clear thinking processes, normal thought content, and a good memory.  In the examiner's opinion the applicant had the capacity to understand and participate in the proceedings, was mentally responsible, met retention health requirements and was psychiatrically cleared for administrative action deemed fit by the command.


12.  On 6 June 2003, the company commander notified the applicant of his intention to recommend separation with a under other than honorable conditions (UOTHC) discharge for pattern of misconduct.  He pointed out the possible consequences of such a discharge and the applicant's attendant rights.

13.  The applicant consulted with counsel and reserved his right to consulting counsel and requested all other attendant rights.  He indicated he understood he could expect to encounter substantial prejudice in civilian life and that he might be ineligible for veterans' benefits under Federal and State laws.

14.  The company commander recommended his separation with a general discharge under honorable conditions.  

15.  The chain of command recommended approval and the separation authority so directed.

16.  On 24 June 2003, the applicant was separated with a general discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct.

17.  The Army Discharge Review Board (ADRB) at a 20 November 2009 document review denied the applicant’s request to upgrade his discharge.

18.  At a personal appearance hearing on 29 August 2012 the ADRB decided by a 3 to 2 vote to change the authority and separation code for the applicant's general discharge from Army Regulation 635-200, "paragraph 14-12b" and "JKA" to paragraph "14-12a" and "JKN" and to change the narrative reason from a "pattern of misconduct" and  to "misconduct."

19.  In support of his current request to upgrade the discharge the applicant submitted copies of:

	a.  the sworn statement by SSG Y---- about the applicant's misuse of the NIPRNET;

	b.  an unsigned, undated statement by Zarin F. M----.  He states –

* his professional knowledge of the situation shows that the applicant's discharge and treatment was unfair and unjust
* he served on active duty in MOS 31U, he was stationed in Afghanistan, and "tasked to establish a working network in Kandahar" for both classified and unclassified traffic, he designed, installed and maintained it; he "knew its faults better than anybody in country"
* the NIPRNET was imperfect due to a lack of resources and equipment; it was subject to viruses and other malicious software
* Soldiers were allowed to browse the internet; it would be bombarded with pop-ups and then try to "X" them out or close them which would sometimes download streams without the individual's consent or even knowledge 

20.  Zarin F. M---- served on active duty for 4 years including in Afghanistan from 27 February to 16 August 2002 and in Kuwait/Iraq from 28 February 2003 to 
7 January 2004.  He was honorably released from active duty as a specialist (pay grade E-4), he received the Army Good Conduct Medal, appropriate campaign medals, the Air Assault Badge, and no personal decorations.

21.  Records show the applicant, SSG Y----, SGT S----, and Zarin F. M shared the same MOS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the discharge must be changed:

	a.  because the action by military authorities was arbitrary, capricious or an abuse of discretion; and

	b.  because SSG Y---- arbitrarily determined that he did not believe the applicant and this led to the NJP.

2.  SSG Y----'s 12 February 2002 sworn statement shows that the applicant was asked to leave the shop because he was not believed.  The search of the NIPRNET continued, then SSG Y---- and SGT ---- decided to counsel the applicant and turn the issue over to the applicant's command.

3.  The evidence shows that SSG Y----'s actions were neither arbitrary nor capricious.

4.  SSG Y----'s conclusion that the applicant was not being truthful was neither the most important part of the NIPRNET issue nor the most important part of the NJP.  The NJP occurred a week later, after the applicant had had the opportunity to consult with counsel and to demand trial by court-martial and after the battalion commander had time to consider any relevant evidence that was brought to his attention.  If the unauthorized sites opened as Zarin F. M---- described them, then the applicant could have raised this issue during a 
court-martial process. 

5.  The initial misuse of the NIPRNET and the resulting NJP was not the sole incident that led to the applicant's discharge.  It probably wasn't even the most important.  Separation processing didn't even commence until 6 June 2002, about three and a-half months after the NJP and only after the applicant had – 

* failed to show up for his assigned duty on seven out of ten days
* been counseled about leaving his place of duty on another occasion
* been counseled about willful disobedience of an NCO
* accepted NJP for yet another absence from his place of duty and for making a false official statement

6.  Considering the foregoing, Zarin F. M----'s opinion that the pornographic sites and MP3 data found on the NIPRNET computer were not the applicant's fault but merely an aberration of the system, is irrelevant.

7.  The applicant's repeated misconduct resulted in the discharge and clearly demonstrated a pattern of misconduct.

8.  The applicant submitted neither probative evidence nor convincing argument in support of the request.  There is no basis for granting the applicant's request.

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)                                         AR20140006313





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ABCMR Record of Proceedings (cont)                                         AR20140006313



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