IN THE CASE OF:  	  

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140009620 


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 (GD) under honorable conditions to an honorable discharge (HD).

2.  The applicant states:

   a.  the mistreatment he experienced by his chain of command led him to depart absent without leave (AWOL) during a stop-loss;
   
   b.  he is seventy percent (70%) disabling based on his service connected Post-Traumatic Stress Disorder (PTSD) from the time he spent in Iraq when his roommate committed suicide;
   
   c.  he will bring letters from Soldiers in his unit to prove his mistreatment and new evidence to support his claim; and
   
   d.  he wants his discharge upgraded so he can more easily get to work and feel good about himself.

3.  The applicant indicates he will bring letters from a Soldier, his former commander, and other new evidence to the Board.  On 23 December 2014, a staff member of the Board contacted the applicant and informed him that formal hearings are only granted by the Board when deemed necessary.  The applicant stated he would mail his supporting evidence to the Board on Friday,
26 December  2014, and at that time he was informed his application would be held in abeyance for 10 working days and if his documents were not received by that time his case would be submitted to the Board.

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's military records show he enlisted in the Regular Army on 19 July 2001.  He held military occupational specialty 21W (Carpentry Masonry Specialist).

3.  His records show he served in Iraq from 6 September 2003 to 15 April 2004 and from 19 November 2004 to 28 October 2005.  It also shows he was promoted through the ranks to sergeant/E-5 on 1 December 2004 and this was the highest rank he held.

4.  His disciplinary history shows he first accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 August 2005, while serving in Iraq.  He accepted this NJP for violating a lawful general order by wrongfully possessing and consuming alcohol on or about 19 August 2005.

5.  The applicant's official military personnel file (OMPF) includes three DA Forms 4187 (Personnel Action) prepared on the dates shown to report his duty status changes as indicated:

* 17 November 2005 - (present for duty to AWOL on 17 November 2005)
* 4 January 2006 - (AWOL to drop from rolls (DFR) on 17 December 2005)
* 28 February 2006 - (DFR to present for duty on 28 February 2006)

6.  On 1 March 2006, a Report to Suspend Favorable Personnel Actions (FLAG) was initiated against the applicant based on elimination action.
7.  His OMPF includes a DD Form 2807-1 (Report of Medical History) and DD Form 2808 (Report of Medical Examination) prepared on 8 March 2006, which show he was diagnosed with PTSD, depression, and anxiety.  These reports also show he is currently seeing a psychiatrist and will need an evaluation at the Department of Veterans Affairs (VA).

8.  A Report of Mental Status Evaluation prepared on 16 March 2006 shows the applicant's:

* behavior and thought content were normal
* was fully alert and oriented
* mood was unremarkable
* thinking process was clear
* memory was good
* was mentally responsible
* met retention requirements
* had the mental capacity to understand and participate in separation proceedings
* was psychiatrically cleared for any administrative action deemed necessary by the command

9.  On 21 March 2006, the applicant again accepted NJP under the UCMJ for departing AWOL from on or about 17 November 2005 to 28 February 2006. 

10.  On 27 March 2006, the unit commander notified the applicant that he was initiating action to separate him under honorable conditions under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  The commander cited the applicant's AWOL from 17 November 2005 until his apprehension on 28 February 2006, as the basis for the separation action.

11.  On 29 March 2006, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to:

   a.  waive consideration of his case by a board of officers contingent upon receiving a characterization of service no less favorable than a GD; and
   
	b.  not to make a statement in his own behalf.

12.  On 5 April 2006, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of a GD.
13.  On 26 April 2006, the applicant was discharged from the Army.  His DD Form 214 shows he was discharged under honorable conditions (general) by reason of "misconduct" under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 4 years, 5 months, and 27 days of creditable active duty service.

14.  On 14 April 2008, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

15.  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 personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An HD or a GD may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.

	b.  Paragraph 3-7a provides that an HD 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contentions that his GD should be upgraded to an HD because he was mistreated by his chain of command has been carefully considered.  However, there is no evidence in his OMPF to support this claim.

2.  The evidence of record confirms that the applicant accepted NJP on two separate occasions for acts of misconduct based on his wrongful use of alcohol and his AWOL offense.  By violating a lawful general order and departing AWOL, he compromised the trust and confidence placed in him as a Soldier.  He had the duty to support and abide by the Army's policies.  Specifically, by departing AWOL, he knowingly risked his military career and clearly diminished the overall quality of his service below that meriting an HD.  He elected not to make a statement supporting his current contentions at the time.

3.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20140009620





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ABCMR Record of Proceedings (cont)                                         AR20140009620



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