RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 November 2007
	DOCKET NUMBER:  AR20070003972 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Jessie B. Strickland

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 dated 26 August 1986 be upgraded to honorable.

2.  The applicant states that he joined the Army on 26 June 1984, 6 days out of high school and freely admits that he was immature, willful and stubborn at times. However, a mistake made when he was 18 years of age bears very little similarities to the mature Soldier and citizen he has become.  After a 6 year break in service he requested a waiver and was granted permission to rejoin the military.  Since rejoining, he has led men in peace and war and has received numerous decorations.  He also states that he has demonstrated a clear head and sound decision making principles.  He goes on to state that he was twice recommended for officer candidate school (OCS) and was not selected because of what happened 20 years ago.  He continues by stating that he anticipates the same happening in regards to warrant officer candidate school.  He further states that he is currently pursuing a Master’s degree in Education, that he has worked with at risk youths for over 10 years in an effort to make our society a better place and prevent the mistakes he made and he has not abused the trust placed in him by the military and his peers and will not abuse the trust placed in him by the Board if his request is approved. 

3.  The applicant provides copies of his DD Form 214s and mobilization orders as a member of the New York Army National Guard (NYARNG).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in Newark, New Jersey on 26 June 1984 for a period of 3 years and training in the infantry career management field.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and remained assigned to Fort Benning, his only permanent duty assignment.  He was advanced to the pay grade of E-4 on 26 November 1985.

2.  On 28 January 1986, nonjudicial punishment (NJP) was imposed against him violating a lawful general regulation by operating a government vehicle at an excessive speed.  His punishment consisted of a reduction to the pay grade of  E-3 (suspended for 90 days) and extra duty.

3.  The applicant also wrecked the government vehicle and a report of survey found that the total damage because of the applicant’s negligence was $14,968.62 and found him pecuniarily liable in the amount of $697.12.

4.  The applicant left his place of duty as the charge of quarters without authority on 31 January 1986 and on 12 February 1986, the suspended reduction to the pay grade of E-3 was vacated.

5.  On 13 March 1986, NJP was imposed against him for disobeying a lawful order from a superior commissioned officer.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 90 days), a forfeiture of pay (suspended for 90 days), extra duty and restriction.

6.  On 26 March 1986, the applicant disobeyed a lawful order from a superior noncommissioned officer (NCO) and on 7 April 1986, the suspended reduction and forfeiture of pay were vacated.

7.  On 15 July 1986, NJP was imposed against him for disobeying lawful orders from two superior noncommissioned officers and being disrespectful in language towards a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay (suspended for 90 days), extra duty and restriction.

8.  On 23 July 1986, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-12a for misconduct – minor disciplinary infractions.  He cited the applicant’s disciplinary record and his unsatisfactory conduct and efficiency evaluations as the basis for his recommendation.

9.  The applicant’s defense counsel submitted a rebuttal to the proposed separation proceedings contending that the applicant should be transferred to another unit.

10.  The applicant’s commander submitted a request to waive the rehabilitative transfer contending that the applicant had demonstrated through his actions that he was unable to conform to military life, nor was he willing to try.  His performance was well below average and he had been counseled numerous times for tardiness and absenteeism.  He went on to state that transferring him to another unit would not change him and only result in a detriment to good order and discipline.

11.  The appropriate authority approved the waiver of transfer and the recommendation for discharge on 19 August 1986 and directed that the applicant be furnished a General Discharge Certificate.

12.  Accordingly, he was discharged under honorable conditions on 26 August 1986, under the provisions of Army Regulation 635-200, paragraph 14-12a, for misconduct – minor disciplinary infractions.  He was issued Reenlistment (RE) Codes of RE-3 and RE-3C. 

13.  There is no evidence to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

14.  On 9 March 1994, the applicant was granted a waiver of his RE Codes for the purpose of enlisting in the New York Army National Guard (NYARNG).  He enlisted in the NYARNG on 7 April 1994 for a period of 3 years and on 9 November 1995, he was granted a waiver to remain in the NYARNG after it was determined that his enlistment was fraudulent because he had concealed his arrest record.  He has remained in the National Guard through a series of continuous reenlistments and was promoted to the rank of sergeant on 27 October 2004.  He was also ordered to active duty in support of Operation Iraqi Freedom.

15.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7b, also 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  While the applicant has served satisfactorily in the National Guard since his enlistment in 1994, that in itself has no bearing on the period of service in the Regular Army that is now in question or the misconduct which served as the basis for his general discharge. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __MJF___  __LMD__  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.





____Kenneth L. Wright____
          CHAIRPERSON


INDEX

CASE ID
AR20070003972
SUFFIX

RECON

DATE BOARDED
20071106
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.6000
626/A60.00
2.

3.

4.

5.

6.