IN THE CASE OF:  	  

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140008615 


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, in effect, an upgrade of his 1997 under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states he has served honorably and has since been awarded the Purple Heart and reclassified as a counterintelligence agent.  In 1997, he was young and made a mistake.  This discharge has been used against him numerous times during promotion boards for pay grade E-7.  He will be honorably discharged from the Army in 3 weeks.

3.  The applicant provides copies of the following:

* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* Orders Number 240-727
* Purple Heart certificate
* Permanent Orders (PO) Number 175-02
* Memorandum for Record (MFR)

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Kansas Air National Guard (KSANG) on 17 October 1996, with prior U.S. Air Force enlisted service.  He was honorably separated from the KSANG on 2 June 1997.  

3.  He enlisted in Regular Army (RA) on 4 June 1997 for 3 years.  At the time of his enlistment, he was 19 years, 11 months, and 18 days of age.  He was awarded military occupational specialty (MOS) 13E (cannon fire direction specialist).

4.  His record is void of the facts and circumstances surrounding his discharge; however, his records contain a DD Form 214 which shows he was discharged in pay grade E-1 on 31 October 1997, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10.  His service was characterized as UOTHC.  He was credited with completing 3 months and 23 days of active service with 36 days of time lost.

5.  On 21 May 1999, the Army Discharge Review Board denied his petition for an upgrade of his 1997 UOTHC discharge.

6.  He enlisted in the Kansas Army National Guard (KSARNG) on 12 March 2001.  He was honorably discharged in pay grade E-3 on 6 April 2004.

7.  He enlisted in the RA on 7 April 2004.  He served in MOSs 68W (health care specialist) and 35L (counterintelligence agent).  He reenlisted in the RA on 19 April 2006.  He served in Iraq from 14 September 2006 through 17 November 2007.  He was promoted to pay grade E-6 on 1 January 2007.

8.  He provided copies of the following:

* Purple Heart certificate, dated 8 November 2007, awarding him the Purple Heart for wounds received in action on 15 August 2007
* PO Number 175-02, dated 24 June 2009, awarding him the Combat Action Badge for actively engaging or being engaged by the enemy on 15 August 2007

9.  He again served in Iraq from 24 June 2010 through 18 November 2011.
10.  He also provided a copy of an MFR, dated 4 October 2012, wherein the Command Surgeon, U.S. Central Command, attested to the applicant's achievements and his support of the applicant's continued service in the Army and promotion to pay grade E-7.

11.  In a memorandum, dated 10 October 2012, the U.S. Army Human Resources Command (HRC) advised him that his command had requested his removal from the Fiscal Year (FY) 2012 Sergeant First Class (SFC) Selection Board and that his records would appear before the FY2013 SFC Standby Advisory Board scheduled for 4 February 2012.

12.  In a memorandum, dated 8 April 2013, HRC advised him that the board members and the Director of Military Personnel Management approved the removal of his name from the FY2013 SFC Selection Board list.

13.  On 29 January 2014, while in Kuwait, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for the following:

   a.  dereliction in the performance of duties in that he willfully failed to properly maintain, handle, and store a laptop computer and related items, which was seized evidence in an investigation, in a manner, so that the integrity and physical characteristics were maintained which was his duty to do, by keeping the item in his barracks room, and altering and deleting digital media to and from the items on 17 November 2013.

   b.  dereliction in the performance of duties in that he willfully failed to properly maintain, handle, and store a Nokia Model cell phone, which was seized evidence in an investigation, in a manner, so that the integrity and physical characteristics were maintained which was his duty to do, not returning the item to the evidence custodian, and then improperly destroying or disposing of the item on 17 November 2013.

   c.  dereliction in the performance of duties between 1 October and 17 November 2013, in that he willfully failed to properly maintain, handle, and store a White Apple I Phone 5, which was seized evidence in an investigation, in a manner, so that the integrity and physical characteristics were maintained which was his duty to do, not returning the item to evidence custodian, and then improperly destroying or disposing of the item.

   d.  with intent to deceive, rendering a false statement to his supervisor the location of the laptop, an item of evidence he obtained for the evidence custodian on or about 16 November 2013.
   
   e.  wrongfully endeavoring to obstruct justice by altering and disguising the location and condition of an laptop and related items he obtained from the evidence custodian, in order to disguise his actions with the laptop, in an effort to hide his misconduct on or about 16 and 17 November 2013.

14.  His punishment included a reduction to pay grade E-5 and a suspended forfeiture of $1,547.00 pay for 2 months.  On 7 March 2014, his appeal of the NJP denied.

15.  He was honorably discharged in pay grade E-5 on 25 April 2014 by reason of hardship.  He was credited with completing 10 years and 19 days of active service during the period under review.

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

   a.  Chapter 10 - a Soldier who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Army policy stated that although an honorable or general discharge is authorized, a discharge UOTHC was normally considered appropriate.

   b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances surrounding his 1997 discharge; however, it appears after charges were preferred against him and after consulting with counsel he voluntarily, willingly, and in writing requested discharge from the Army.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  

2.  His contention that he was young at the time was carefully considered.  He was 19 years, 11 months, and 18 days of age at the time of his enlistment in June 1997.  He was over 20 years of age at the time of his misconduct.  There is no evidence he was any less mature than any other Soldier who successfully completed their period of enlistment.
3.  He provided no evidence or a convincing argument to show his 1997 discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his UOTHC discharge.  The evidence shows his misconduct during his period of service from June to October 1997 diminished the quality of his service below that meriting a general discharge.

4.  Without evidence to the contrary, 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.  Therefore, there is no basis for granting him the requested relief.

5.  He is commended for his awards, accomplishments, and continued military service; however, the ABCMR does not grant relief solely on periods of post accomplishments and honorable service and discharges.  

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)                                         AR20140008615





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ABCMR Record of Proceedings (cont)                                         AR20140008615



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