IN THE CASE OF:	  

		BOARD DATE:	  30 June 2015

		DOCKET NUMBER:  AR20140019087 


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:

The applicant defers requests and statements to counsel and provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the following:

* reinstatement of the applicant in the U.S. Army in pay grade E-2 effective 28 December 2007
* immediate promotion to pay grade E-3
* full back pay and allowances from the date of separation to the present
* in the alternative, counsel requests the following:

* an upgrade of the applicant's general discharge to an honorable discharge
* a change to the following items of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty):

* Item 25 (Separation Authority) from "Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph (PARA) 14-12c" to "AR 635-200, para 4-2"
* Item 26 (Separation Code) from "JKQ" to "MBK"
* Item 27 (Reentry (RE) Code from "3" to "1"
* Item 28 (Narrative Reason for Separation) from "Misconduct (Serious Offense) to "Completion of Required Active Service" or "Secretarial Authority"

* a personal appearance before the Board

2.  Counsel states:

   a.  The applicant was unjustly discharged from the Army by reason of misconduct (serious offense) under the provisions of AR 635-200, paragraph 
14-12c, with a general, under honorable conditions, characterization of service.  The applicant has exhausted all administrative remedies under existing law and regulations within the Department of the Army and requests relief.  If relief cannot be granted based solely upon this application, then the applicant requests a personal appearance before the Board.

   b.  The applicant was born on 16 November 19XX.  He lived in New Hampshire until he was 5 years of age.  His parents divorced and he moved with his mother to Vancouver, British Columbia, Canada, and lived with her until he was 8 years of age.  He then moved with his father who lived in Naugatuck, CT.  They moved several times while the applicant was growing up.  After the applicant graduated from high school they moved to Heron, CT.  His father worked long hours and often came home after the applicant had gone to bed.  

   c.  The applicant's grandfather, father, great uncles, and uncle served in the military.  The applicant knew the military could offer him specialized training and a chance to succeed.  He longed for the opportunity to join the elite U.S. Army Rangers.  He enlisted in the Army on 13 June 2006 and departed for basic training at Fort Benning, GA.  Basic training was difficult at first, but he soon adapted to the physical and mental regimen, successfully graduating in October 2006.

   d.  The applicant then received orders to Fort Campbell, KY, to join the legendary 101st Airborne Division as a member of the 2nd Battalion, 506th Infantry Regiment, 4th Brigade Team.  Upon reporting, he volunteered for extra duty and specialty training, seeking the opportunity to fulfill his goal of becoming a U.S. Army Ranger.  Unfortunately, since he was new to the Army and the unit, he was left out of the selection process for advanced schools.  Those opportunities were given to other Soldiers who had been on active duty longer or were more senior in pay grade.  Many of those Soldiers who were filling the slots for those classes had no intention of reenlisting or were forced to attend classes and purposely failed out of them.

   e.  The applicant repeatedly requested extra training and was repeatedly denied.  He specifically addressed his chain command about participating in Scout try-outs, but he was never scheduled.  He felt he was being ignored and not allowed the opportunity to advance or take part in schools and other training. The command environment was very repressive.  

   f.  The applicant began to receive unwanted attention from Sergeant (SGT) Wxxxxx.  This including harassing behavior, such as spot checks on weekends when SGT Wxxxxx would go through the applicant's personal belongings.  No one in the applicant's command would take action to stop SGT Wxxxxx's behavior toward the applicant which continued for months.  Suffering from constant abusive behavior and being repeatedly ignored for promotion and training opportunities, the applicant could not take any more abuse.  He went absent without leave (AWOL) on or about 29 May 2007 and voluntarily returned on 18 November 2007.  

   g.  On 29 November 2007, he received developmental counseling and was advised of the recommendation for discharge.  He never received any formal disciplinary hearings, an Article 15, or court-martial as a result of his AWOL.  He was then restricted to post.  He advised his first sergeant that he wanted to continue in the military.  On 13 December 2007, the applicant's company commander initiated action to discharge the applicant.  His chain of command approved the recommendation and he was discharged on 28 December 2007 with a general discharge.  From the time of the applicant's return from being AWOL until his discharge he did not receive any pay or allowances.   

   h.  The applicant was wrongfully subjected to a hostile work environment.  Title VII of the Civil Rights Action of 1964 (Public Law 88-352) prohibits workplace discrimination based on race, color, religion, sex, or national origins.  SGT Wxxxxx continually subjected the applicant to unwarranted and unnecessary inspections of his personal belongings and harassed the applicant at work.  No one in the applicant's chain of command stepped in to stop SGT Wxxxxx's abuse and harassment of the applicant.  The Army believed then, as it believes now, that the applicant had an absolute right to work in an environment free of abuse and hostility.  His command leadership failed to provide that environment.

   i.  The applicant was improperly processed for separation due to commission of a serious offense in accordance with AR 635-200, paragraph 14-12c.  AWOL does not mandate separation.  The applicant voluntarily sought training and his requests were denied.  His chain of command had other options other than his separation.  He was not afforded the opportunity for rehabilitation or to explain his situation or reasons for leaving.
   j.  The applicant was illegally placed on restriction.  The Manual for 
Courts-Martial, Rule 304(a), states pretrial restriction is moral or physical restraint on a person's liberty which is imposed before and during disposition of offenses.  Pretrial restraint may consist of conditions of liberty, restriction in lieu of arrest, arrest, or confinement.  The applicant was never charged with any violation of the Uniform Code of Military Justice (UCMJ), yet he was placed on restriction.  This form of restraint was illegal.  He remained on restriction until he was discharged. This "moral restraint" only served to demean, humiliate, and further harass the applicant.

   k.  The applicant entered the Army as an optimistic young man, looking for a chance to honorably serve his country and in the process make a better way of life for himself.  He had the misfortune of being assigned to an unmotivated and underperforming unit that did not take adequate steps to develop and promote him as it should have.  This fact, coupled with the hostile work environment created by SGT Wxxxxx, created an intolerable climate for the applicant.  The applicant should have been offered a chance to excel, but no one in his command would give him a chance.  He was discharged without any efforts to counsel and rehabilitate.  This entire situation was unwarranted, unjust, and demands correction.

3.  Counsel provides:

* two DA Forms 4856 (Developmental Counseling Form)
* AR 635-200, paragraph 14-12c separation package
* DD Form 214
* four Affidavits

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 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 U.S. Army Reserve Delayed Entry Program on 12 May 2006 and was discharged on 12 June 2006.  He enlisted in the Regular Army, in pay grade E-1, on 13 June 2006, for 3 years.  He was awarded military occupational specialty 11B (infantryman).  He was advanced to pay grade E-2 on 13 December 2006.

3.  He was reported AWOL on 29 May 2007 and returned to duty on the same day.  He was reported AWOL 30 May 2007 and was dropped from the rolls of his organization on 30 June 2007.  He returned to military control on 19 November 2007.

4.  His records contain and counsel provided copies of the following:

   a.  A DA Form 4856, dated 29 November 2007, wherein he received counseling for being AWOL and possible elimination from the service if the misconduct continued.

   b.  A DA Form 4856, dated 12 December 2007, wherein he received counseling for his AWOL and the recommendation for his separation from the service under paragraph 14-12c.

   c.  A Separation Under AR 635-200, chapter 14, paragraph 14-12, Commission of a Serious Offense memorandum, dated 13 December 2007, wherein the applicant’s company commander recommended the applicant's separation.  The company commander stated it was his judgment that it was not feasible and appropriate to expend any further toward rehabilitating the applicant to an acceptable level of performance and conduct.  

   d.  A Separation Under AR 635-200, chapter 14, paragraph 14-12, Commission of a Serious Offense memorandum, dated 13 December 2007, wherein the applicant’s company commander initiated action against the applicant to separate him for being AWOL from 30 May through 19 November 2007 with a general discharge.  He advised the applicant of his rights.

   e.  A Separation Under AR 635-200, chapter 14, paragraph 14-12, Commission of a Serious Offense memorandum, dated 13 December 2007, wherein the applicant acknowledged receipt of the intended separation.  He waived his right to counsel and did not submit a statement in his own behalf.

   f.  A Separation Under AR 635-200, chapter 14, paragraph 14-12, Commission of a Serious Offense memorandum, dated 14 December 2007, wherein the applicant’s battalion commander recommended approval of the applicant's discharge and issuance of a General Discharge Certificate.
   g.  A Separation Under AR 635-200, chapter 14, paragraph 14-12, Commission of a Serious Offense memorandum, dated 14 December 2007, wherein the separation authority approved applicant’s discharge and directed the issuance of a general discharge.

5.  Accordingly, he was discharged in pay grade E-2 on 28 December 2007.  He was credited with completing 1 year and 27 days of active service and had 173 days of time lost.  His service was characterized as under honorable conditions, general.  His DD Form 214 lists in:

* Item 25 – “AR 635-200, PARA 14-12c”
* Item 26 - "JKQ"
* Item 27 - "3"
* Item 28 - "Misconduct (Serious Offense)"

6.  Counsel also provided four affidavits wherein the individuals, the applicant's brother, uncle, father, and closest longtime friend, attested that the applicant was a very honest and truthful person and a law-abiding citizen and stated their support of an upgrade of his discharge. 

7.  On 11 July 2011, the Army Discharge Review Board denied his request for an upgrade of his general discharge.

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

   a.  Paragraph 14-12c - Soldiers would be separation for the commission of a serious offense to include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impractical or unlikely to succeed.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation stated:

* Item 25 would list the separation authority
* Item 26 would list the proper separation program designator (SPD) representing the reason for separation
* Item 27 would list the appropriate RE code
* Item 28 would list the reason for separation based on the regulatory or statutory authority

10.  AR 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for those stated reasons.  The regulation stated the SPD code "JKQ" was the appropriate code to assign to Soldiers separated under the provisions of 
AR 635-200, paragraph 14-12c, by reason of misconduct.  The SPD/RE Code Cross Reference Table stipulated that an RE-3 code will be assigned to members separated under these provisions with an SPD code of "JKQ."

11.  AR 601-210 (Active and Reserve Components Enlistment Program), in effect at time, covered eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior-service applicants for enlistment.  That chapter included a list of Armed Forces RE codes:

* RE-3 applied to persons who were not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable
* RE-1 applied to persons completing an initial term of active service who were fully qualified when last separated

12.  Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  With regard to reinstatement of the applicant in the U.S. Army in pay   grade E-2 effective 28 December 2007, immediate promotion to pay grade E-3, and full back pay and allowances from the date of separation to the present:

   a.  The evidence shows action was initiated to separate the applicant due to misconduct of 173 days of AWOL.  He acknowledged receipt of the proposed action and the separation authority approved his discharge.  He was discharged accordingly on 28 December 2007.

   b.  Once an individual is discharged they are not eligible for reinstatement unless it is subsequently discovered that the discharge was erroneous or unjust.  There is no evidence of record and counsel and applicant provided none to show this was the case. 

   c.  He was discharged in pay grade E-2, the highest grade held at the time of his separation.  In order for him to be advanced to pay grade E-3, he would have had to be recommended for advancement to the next higher grade while in an active status.  
   
   d.  In view of the foregoing, the applicant is not entitled to the requested relief.

2.  With regard to an upgrade of the applicant's general discharge to an honorable discharge:

   a.  It appears his good record of service prior to the misconduct was the basis for his receiving a general discharge and being separated in pay grade E-2 instead of an under other than honorable conditions discharge and reduction to pay grade E-1.

   b.  Counsel's contentions were carefully considered; however, he and the applicant provided no evidence or a convincing argument to show that the applicant's general discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.   

   c.  The evidence shows 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, the applicant is not entitled to an upgrade of his general discharge.

3.  With regard to a change of items 25, 26, 27, and 28 of the applicant's DD Form 214:

   a.  The evidence shows he was separated under the provisions of       AR 635-200, paragraph 14-12c, in effect at the time; therefore, the entry in item 25 of his DD Form 214 is correct.

   b.  He was also properly assigned the SPD code of "JKQ" and the corresponding RE code of "3" in accordance with applicable regulations.

   c.  The narrative reason listed in item 28 of his DD Form 214 is not improper in accordance with the reason for separation under the aforementioned paragraph.  
   
   d.  Counsel and the applicant have failed to show through the evidence submitted or the evidence of record that the entries in items 25, 26, 27, and 28 of the applicant's DD Form 214 are erroneous or unjust.  The entries are administratively correct and in conformance with applicable regulations at the time.  Therefore, there is no basis for granting the requested relief.

   e.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Counsel and the applicant are advised that if the applicant desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant's RE code.

4.  With regard to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20140019087





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ABCMR Record of Proceedings (cont)                                         AR20140019087



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