RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011081 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Paul Smith

Member

Mr. Jerome Pionk

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to honorable.

2.  The applicant states, in effect, that he received nonjudicial punishment for striking another Soldier; however, he never struck this Soldier.  He contends that he never received justice for this matter and that it played a major role in his discharge.  He states that his orders were to plead guilty so he would not be punished.  He also states that the victim of the assault and four other Soldiers state that he had nothing to do with the fight but his counsel did not believe the facts.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 September 1996.  The application submitted in this case is dated 11 July 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 3 August 1994 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 13B (cannon crewman).    

4.  The applicant’s service personnel records contain a memorandum, dated 
7 July 1995, titled: Subject: Final Adjudication of Fighting Incident (3 July 1995).  This memorandum states, in pertinent part, that based on a final report it was determined that the applicant participated in the physical altercation and the applicant’s battery commander recommended company level adjudication.  

5.  On 27 July 1995, nonjudicial punishment was imposed against the applicant for striking a Soldier on 3 July 1995.  His punishment consisted of a reduction to E-2 (suspended), restriction, and extra duty.  

6.  On 20 May 1996, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 16 April 1996 to 8 May 1996.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

7.  Between January 1996 and June 1996, the applicant was counseled for indebtedness, being AWOL, failure to get a haircut, and failure to report to guard duty at the proper time.

8.  On 2 August 1996, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct).  His unit commander cited the applicant’s two nonjudicial punishments and his failure to honor just debts.  The unit commander recommended that the applicant be furnished a general discharge.

9.  On 2 August 1996, the applicant declined the opportunity to consult with counsel, waived representation by counsel, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued. Also, he elected not to submit a statement on his own behalf.

10.  On 29 August 1996, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

11.  Accordingly, the applicant was discharged on 16 September 1996 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct).  He had served a total of 2 years and 22 days of creditable active service with 22 days of lost time due to AWOL.    

12.  On 2 February 2006, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of 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 record.

14.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions pertaining to the imposition of the 1995 nonjudicial punishment relate to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a court-martial.  However, the applicant accepted nonjudicial punishment for this assault offense, rather than demand trial by court-martial.  

2.  The applicant’s record of service included two nonjudicial punishments and 22 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.    

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

WP_____  __PS___  _JP_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.



___William Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20060011081
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19960916
DISCHARGE AUTHORITY
AR 635-200 Chapter 14
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.