IN THE CASE OF:  	  

		BOARD DATE:  12 March 2015	  

		DOCKET NUMBER:  AR20140013422 


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 his under honorable conditions (general) discharge be upgraded to an honorable discharge.  

2.  The applicant states:

	a.  He was a victim of retaliation by his command.  His chain of command targeted him for going above them to the division commander in Iraq.

	b.  He had no problems or issues prior to that day.  Before he was sent home from Iraq, his command sergeant major told him that he was not going to go home that easy and that he was going to attach an Article 15 to his record.

	c.  At the time, his son was abandoned and homeless so he had to accept the disciplinary action in order to go home.

	d.  The time frame his unit disciplined him and the time frame he asked to be released do not match up.

	e.  He was a stellar Soldier with a great career path and all he asked for was
1 week to go back and make sure his son was with his family, but they denied it.  He believes they intended to destroy his military career.  

	f.  If his discharge gets upgraded, he will have the chance to continue serving his country.  He received his bachelor's degree so he can come back in as an experienced officer to lead troops into combat.
3.  The applicant provides no additional evidence in support of his request.  

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 on 1 November 2000.  He reenlisted for a period of 3 years on 30 April 2003.  He was promoted to the rank and grade of sergeant/E-5 on 1 January 2004.

3.  On 24 February 2004, he accepted nonjudicial punishment (NJP) for disobeying a lawful command from a commissioned officer to pay his bills and for making a false official statement to a commissioned officer by telling him that he had made an allotment to pay his debt, which was totally false.

4.  On 12 September 2006, he was counseled for rendering a check in the amount of $2,500 without sufficient funds.

5.  On 9 January 2007, he accepted NJP while deployed to Iraq for violating a lawful general regulation by wrongfully possessing a pornographic slide show on a "SECRET" thumb drive, dereliction of his duties by failing to report that he found a "SECRET" thumb drive, and for failure to pay a debt.  

6.  On 25 January 2007, his unit commander advised him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, based on a pattern of misconduct.  His unit commander recommended he receive an under honorable conditions (general) characterization of service.  The reasons cited for the proposed separation action were the applicant's violation of a lawful general regulation by wrongfully possessing a pornographic slide show on a "SECRET" thumb drive, dereliction of his duties by failing to report that he found a "SECRET" thumb drive, and his failure to pay a debt.  He was advised of his right to:
* consult with legal counsel 
* present his case before an administrative separation board
* submit statements in his own behalf
* waive his rights in writing

7.  He consulted with counsel and he was advised of the basis for the contemplated action to involuntarily separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, due to patterns of misconduct.  

* he waived a personal appearance before an administrative separation board, representation by counsel, and he elected not to submit statements in his own behalf
* he acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him
* he also acknowledged he understood that if he received a character of service of less than honorable, he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge
* he realized that an act of consideration by either board did not imply his discharge would be upgraded

8.  On 29 January 2007, the appropriate separation authority approved the recommendation for separation under the provisions of Army Regulation 
635-200, paragraph 14-12b, and directed that he receive an under honorable conditions (general) discharge.  On 6 March 2007, he was discharged accordingly. 

9.  There is no evidence in his military records that show he was a victim of retaliation by his command or that family problems were the proximate cause of his acts of misconduct.  There is also no evidence indicating he sought assistance through military channels for any family related issues.

10.  The ADRB denied his request for an upgrade of his discharge on 15 April 2011.

11.  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 a pattern of misconduct.  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 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's request for an upgrade of his discharge has been carefully considered.  

2.  The evidence of records shows he accepted NJP for disobeying a lawful command from a commissioned officer, making a false official statement to a commissioned officer, violating a lawful general order by possessing pornography while serving in a combat zone, failure to report finding a "SECRET" thumb drive, and for failure to pay a debt.  These were clearly serious offenses and clearly show a pattern of misconduct.  

3.  By committing these acts of misconduct, he compromised the special trust and confidence placed in him as a Soldier and as a noncommissioned officer and he knowingly risked his military career.  These acts of misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge.

4.  The available evidence confirms his separation processing for misconduct was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  He contends his discharge was based on retaliation by his chain of command; however, there is no evidence in his military records, and he failed to provide evidence, which substantiates his contention.  

6.  The applicant has failed to provide evidence demonstrating that the command's actions and/or the characterization of his service were in error or unjust.  Therefore, in view of the foregoing, there is no basis for granting 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 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)                                         AR20140013422



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ABCMR Record of Proceedings (cont)                                         AR20140013422



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