BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140014087 


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 under other than honorable conditions discharge.

2.  The applicant states that he never received punishment under Article 15, Uniform Code of Military Justice (UCMJ), for the incident that resulted in his discharge.  

   a.  He states a Soldier was hurt because of faulty equipment on a military truck (i.e., The Guardian).  The trucks were in danger of being taken back.  Instead of returning them, it was determined that the trucks were more important than one Soldier's reputation.  Before the trucks were used, there were mass casualties from improvised explosive devices.

   b.  He states that he acquired a lawyer in Iraq, found proof that the trucks had problems, and captured this on video.  A board conducted in Iraq found him innocent and that is the reason he did not receive nonjudicial punishment (NJP) or any other adverse action.

   c.  Shortly thereafter, the applicant's superior noncommissioned officer (NCO) took his weapon and accused the applicant of losing it.  He states that he was a problem Soldier in the past having received NJP on four occasions and performance counseling 3 years prior to the incident.  However, he became a model Soldier after realizing the impact the military had had on him.

   d.  He concludes by stating the incident in Iraq and his past NJP were used to discharge him based on a pattern of misconduct.  He did not understand the impact the decision would have on his life. 

3.  The applicant provides no documentary evidence to support his application.

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 (RA) on 24 April 2002 for a period of 3 years.  He was awarded military occupational specialty 74D (Chemical Operations Specialist).  He served in Iraq in support of Operation Iraqi Freedom (OIF) from 27 April 2003 through 2 April 2004.

3.  The applicant accepted NJP on four occasions for:

* being derelict in the performance of his duties on –

* 10 June 2003
* 11 July and 14 July 2003
* 13 August 2003
* 9 October 2003

* behaving with disrespect toward a commissioned officer on 13 August 2003

4.  He was promoted to specialist (E-4) on 1 January 2005.

5.  He reenlisted in the RA on 31 January 2005 for a period of 4 years.  He served in Iraq in support of OIF from 1 May 2005 through 16 December 2005.

6.  A DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers) shows an IO was appointed to investigate the negligent discharge of a .50 caliber weapon on 25 October 2005, which resulted in the loss of the thumb of a Soldier.

   a.  The IO's findings show the tank commander (TC) told the applicant to go to a green and clear status on the .50 caliber weapon system.  The applicant informed him that the weapon was clear.  Subsequent to this, another Soldier was climbing into the TC hatch and grabbed the front of the barrel on the
.50 caliber weapon in order to lower himself into the TC hatch.  When he grabbed the barrel, the weapon fired and shot his thumb.

   b.  It also shows when the IO and another commissioned officer checked the weapon while it was charged and the weapon system was turned off, they shook the gun from the barrel and the bolt released forward.  The IO believed that this indicated a fault in the weapon system that needed to be further investigated by the Armored Support Vehicle Program Manager. 

   c.  On 5 November 2005, the IO found, in pertinent part, the applicant's gross negligence of not clearing the weapon system and reporting to his TC justified the recommendation of field grade Article 15 procedures.  He also recommended the applicant be reduced to private first class (PFC)/pay grade E-3.

7.  A DA Form 4187 (Personnel Action) shows the Commander, Battery A, Logistics Support Area Adder, Iraq, administratively reduced the applicant to PFC (E-3), effective 20 November 2005, for poor performance in basic Soldier skills and courtesies.

8.  Echo Battery, 2nd Battalion, 44th Air Defense Artillery Regiment, 108th Air Defense Artillery Brigade, Fort Campbell, KY, memorandum, dated 27 December 2005, shows the commander documented that the applicant was counseled, in pertinent part –

* on 12 May 2005, for the loss of a sensitive item (night vision goggles)
* on 25 October 2005, for negligence in not clearing the M2/.50 caliber weapon system
* on 1 December 2005, for failure to securely maintain a sensitive item 
(M-4 weapon)

9.  On 13 February 2006, the company commander notified the applicant that he was recommending him for separation under the provisions of (UP) Army 

Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Misconduct), paragraph 14-12b, based on a pattern of misconduct.

   a.  The reasons for the commander's proposed action were numerous documented records of counseling during the period 13 June 2003 through 11 December 2005:

* 10 June 2003 and 14 July 2003, sleeping while on guard duty in support of OIF
* 23 November 2003 and 12 May 2005, failing to maintain accountability of sensitive items
* 25 October 2005, gross negligence in not clearing the M2/.50 caliber weapon system
* 11 December 2005, failing to maintain a sensitive item

   b.  The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel.

10.  On 13 February 2006, the applicant consulted with legal counsel and he was advised of the rights available to him.

   a.  He acknowledged, "I understand that if I have 6 years of total active and/or reserve military service on the date of initiation of the recommendation for separation under AR 635-200, Chapter [sic] 14-12b,…I am entitled to have my case heard by an administrative separation board.  I understand that if I have less than 6 years of total active and/or reserve service at the time of separation and I am being considered for separation for reason of patterns of misconduct under AR 635-200, Chapter [sic] 14-12b, I am not entitled to have my case heard by an administrative separation board [ASB] unless I am being considered for a discharge under other than honorable conditions."

   b.  He requested:

* consideration of his case by an ASB
* personal appearance before an ASB
* representation by military counsel at the ASB

   c.  He waived his right to submit a conditional waiver and he elected not to submit statements in his own behalf.

	d.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.
	e.  He acknowledged he understood that if he received a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and States laws, and that he may expect to encounter substantial prejudice in civilian life.

	f.  The applicant and his counsel placed their signatures on the document.

11.  On 3 March 2006, the separation authority appointed an ASB to determine whether the applicant should be discharged for a pattern of misconduct.  The applicant was provided notice of the scheduled board proceedings.

12.  On 7 April 2006, the company commander recommended approval of the applicant's separation for misconduct based on a pattern of misconduct with a characterization of service of under other than honorable conditions.

13.  On 11 April 2006, an ASB considered all the admitted evidence before it and found the allegations against the applicant in the notice of administrative separation were supported by a preponderance of the evidence.  The ASB recommended that the applicant be discharged from service with a characterization of service of under other than honorable conditions.

14.  On 8 May 2006, the separation authority approved the findings and recommendation of the ASB.  He directed the applicant be discharged UP
AR 635-200, paragraph 14-12b, for misconduct based on a pattern of misconduct and that his service be characterized as under other than honorable conditions.  Accordingly, the applicant was reduced to private/pay grade E–1.

15.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged under other than honorable conditions on 
23 May 2006 UP AR 635-200, paragraph 14-12b, based on a pattern of misconduct.

   a.  He had completed 4 years and 1 month of net active service during this period.

   b.  Item 18 (Remarks) shows, in pertinent part, the applicant's immediate reenlistment this period from 24 April 2002 through 30 January 2005 and from 31 January 2005 through 23 May 2006.  It also shows he completed his first full term of service.  It does not show the period of his continuous honorable active service.

16.   The applicant submitted a request to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 8 September 2008, the ADRB determined that the reason for the applicant's discharge and the character of his service were both proper and equitable.  Accordingly, the ADRB denied relief.

17.  AR 635-200 sets forth the 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, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct based on a pattern of misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall records.
   
   b.  Chapter 3, 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.

   c. 	Chapter 3, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because a board found him innocent of an incident in Iraq.  He did not receive NJP for the incident, and performance counseling from 3 years prior to the incident was used to discharge him based on a pattern of misconduct.

2.  The evidence of record shows an investigation was conducted into the incident the applicant was involved in on 25 October 2005 in Iraq.

   a.  The IO found that the applicant's gross negligence of not clearing the weapon system and reporting to his TC that it was clear justified the recommendation of field grade Article 15 procedures.  He also recommended the applicant be reduced to PFC (E-3).
   
   b.  The applicant's commander administratively reduced him to PFC (E-3).
   c.  Although the applicant may assert that he is innocent with regard to the incident that resulted in another Soldier losing his thumb because he did not receive NJP, the evidence of record clearly shows that the applicant's gross negligence (emphasis added) and false statement to the TC were contributing factors to the incident that forever altered the life of the Soldier who suffered the injury.

3.  Subsequent to his reenlistment on 31 January 2005, he was counseled for the loss of a sensitive item (night vision goggles) and failure to securely maintain a sensitive item (M-4 weapon).  He was also administratively reduced in rank for poor performance in basic Soldier skills and courtesies.  Thus, the evidence of record clearly shows a pattern of misconduct during the period of service under review.

4.  The applicant's administrative discharge under the provisions of AR 635-200, chapter 14, for misconduct based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were both proper and equitable.

5.  During the period of service under review, the applicant committed acts of indiscipline that included failing to maintain accountability of sensitive items (two occasions), gross negligence in not clearing a weapon system, and reduction in grade due to poor performance in basic Soldier skills and courtesies.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20140014087



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ABCMR Record of Proceedings (cont)                                         AR20140014087



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