RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070007400 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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, in effect, monetary compensation for damages that resulted from his improper discharge characterization.  

2.  The applicant states that since the characterization of his service is now corrected, he is currently seeking damages.

3.  The applicant did not provide any documentary evidence in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, monetary compensation for damages that resulted from the mischaracterization of the applicant's discharge.

2.  Counsel states, in effect, that this application is submitted so that the applicant can attain consequential, economic, and non-economic damages from the Department of the Army, or other appropriate federal agency, for losses/injuries he sustained as a direct result of the mischaracterization of his military discharge as less than honorable. 

3.  Counsel provided the following documentary evidence in support of the applicant's request:

	a.  Army Discharge Review Board (ADRB) Letter, dated 24 June 2005, overturning the applicant's discharge 

	b.  Army Review Board Agency, Support Division, Letter, dated 29 July 2005, findings and conclusion of the ADRB.

	c.  Applicant's Resume.

	d.  Copy of the applicant's Bachelor of Science Diploma.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that subsequent to his enlistment in the U.S. Army Reserve (USAR) under the Delayer Entry Program (DEP) on 17 June 1982, the applicant enlisted in the Regular Army on 2 September 1982 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Canon Crew Member).

2.  The applicant's records further show that he subsequently had a series of extensions and/or reenlistment as follows:

	a.  On 11 March 1986, he extended his  September 1982 enlistment for a period of 6 months.  As a result, his expiration of term of service (ETS) was changed from 1 September 1986 to 1 March 1987. 

	b.  On 16 December 1986, he reenlisted for a period of 3 years.  His ETS was 15 December 1989.

	c.  On 14 August 1989, he reenlisted for a period of 3 years.  His ETS was 13 August 1992.

3.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that the applicant was awarded the Army Service Ribbon, the Overseas Service Ribbon with Numeral 2, the National Defense Service Medal (2nd Award), the Army Good Conduct Medal (2nd Award), the Army Achievement Medal, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 9 November 1990, for being absent without leave (AWOL) on 9 November 1990 and for missing a dental appointment on 9 November 1990.  His punishment consisted of an oral reprimand and 7 days of restriction.  

	b.  On 25 April 1991, for failing to go to his appointed place of duty on 22 April 1991.  The applicant demanded trial by Court-Martial.  On 10 June 1991, a Summary Court-Martial convened at Fort Rucker, Alabama, and tried the applicant for failing to go to his appointed place of duty.  The Court-Martial found the applicant guilty and sentenced him to forfeiture of $500 pay for one month and 30 days of restriction.

	c.  On 9 July 1991, for breaking his restriction on 22 June 1991.  His punishment consisted of reduction to the grade of specialist/E-4, 45 days of extra duty, and 45 days of restriction.  The immediate commander submitted a DA Form 4187 (Personnel Action) reducing the applicant to specialist/E-4 effective 17 July 1991.

5.  The applicant's record also reveals a history of negative performance and general counseling as follows:

	a.  On 7 September 1990, conduct unbecoming of a noncommissioned officer (poor appearance of living area).

	b.  On 1 November 1990, failure to wear seatbelt while operating a vehicle.

	c.  On 31 January 1991, failure to follow instructions.

	d.  On 9 March 1991, failure to report to duty (charge of quarters).

	e.  On 22 April 1991, failure to report to duty at the designated time.

	f.  On 25 April 1991, delinquent account and/or letter of indebtedness.

	g.  On 23 May 1991, illegal parking.

	h.  On 22 July 1991, two returned checks for insufficient funds.

6.  On 17 January 1991, the Commander, 260th Field Artillery Detachment, 1st Battalion, 10th Aviation Regiment, Fort Rucker, Alabama, initiated a Bar to Reenlistment Certificate citing the applicant's exceeding weight control standards.  The Bar to Reenlistment was approved on 1 February 1991 by the approval authority.  The applicant elected not to appeal the Bar.

7.  On 5 August 1991, the applicant’s immediate commander initiated a memorandum notifying the applicant of his intent to separate him in accordance with chapter 14, paragraph 14-12b2 of Army Regulation 635-200 (Personnel Separation) for misconduct-repeated violations of the UCMJ.  The immediate commander recommended a General Discharge.

8.  On 5 August 1991, the applicant acknowledged receipt of notification of the separation action and requested his case be considered by an administrative board and personal appearance before that board; submitted statements on his behalf; and requested military counsel.

9.  On 7 August 1991, the applicant consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of a general discharge, and of the procedures/rights that were available to him.  Subsequent to that, he submitted a signed memorandum, Subject: conditional waiver.  He waived consideration of his case by an administrative board if his discharge was no less than under honorable conditions (general discharge).  Otherwise, he requested appearance before a board and a military counsel. 

10.  On 9 August 1991, the Chief, Administrative Law, Staff Judge Advocate, Fort Rucker, Alabama, reviewed the separation action and found it legally sufficient and on 12 August 1991, the applicant's intermediate commander recommended approval of separation and requested the applicant be given an "Other Than Honorable Conditions" discharge.

11.  On 15 August 1991 (a year before his ETS date), the separation authority approved the applicant’s discharge under the provisions of paragraph 14-12b, chapter 14, Army Regulation 635-200 by reason of patterns of misconduct-frequent incidents and directed the applicant be furnished a General Discharge Certificate.  

12.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged in the rank of specialist/pay grade E-4, with a characterization of service of under honorable conditions (general).  This form further confirms that he completed a total of 8 years, 11 months, and 20 days of creditable active military service.

13.  On 29 July 2005, the ADRB found the applicant's discharge improper based on it being approved by an improper separation authority, and it voted to upgrade the applicant's discharge to an honorable discharge and to change the authority and reason for his separation.  This decision was based on the fact that the applicant's chain of command used improper board notification procedures, which required General Court-Martial Convening Authority (GCMCA) approval of the final discharge. 

14.  Accordingly, the applicant's original DD Form 214 was voided and a new DD Form 214 was issued changing the applicant's characterization of service from "Under Honorable Conditions (General)" to "Honorable"; the separation authority from "AR 635-200, paragraph 14-12b" to "AR 635-200, paragraph 5-3"; the narrative reason for separation from "Misconduct-Pattern of Misconduct" to "Secretarial Authority"; the Separation Code from "JKM" to "JFF"; and the Reentry (RE) Code from "3" to "1". 

15.  Title 10 of the United States Code, Section 1169 (Regular Enlisted Members-Limitations of Discharge) states, in pertinent part, that no regular enlisted member of an Armed Force may be discharged before his term of service expires, except as prescribed by the Secretary concerned; by sentence of a general or special court-martial; or as otherwise provided for by law.  

16.  Army Regulation 635-200 (Personnel Separations) provides the policies and procedures for the administrative separation of enlisted Soldiers of the United States Army.  In the version in effect at that time, paragraph 1-19c contained guidance on when a Special Court-Martial Convening Authority (SPCMCA) may approve discharges.  It states, in pertinent part, that the SPCMCA is authorized to approve separations under the provisions of chapter 14 when discharge under other than honorable conditions is not warranted and the notification procedure is used.  

17.  Paragraph 2-5 contained guidance on a waiver of the right to a hearing before an administrative separation board.  It states, in pertinent part, that when a soldier waives his/her right to a hearing before an administrative board and the separation authority approves the waiver, the case will be processed without convening a board; however, the separation authority will be the same as if the board was held.  A Soldier may wish to waive his/her right to a hearing before an administrative separation board contingent upon receiving a characterization of service or description of separation more favorable than the least favorable characterization authorized for the separation reason set forth in the notice of separation action. 

18.  Department of Defense Instruction 1332.28 (Discharge Review Board Procedures and Standards) issues uniform procedures and standards for the review of discharges.  Enclosure 4 outlines discharge review standards and Paragraph E4-2 contains guidance on the propriety of discharges.  It states, in pertinent part, that a discharge shall be deemed proper unless, in the course of discharge review, it is determined that an error of fact, law, procedure, or discretion exists associated with the discharge at the time of issuance; and that the rights of the applicant were substantially prejudiced (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made).  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to monetary compensation for damages that resulted from his improper discharge characterization

2.  Notwithstanding the actions of the ADRB to upgrade his discharge to fully honorable, it appears that the applicant was properly discharged for misconduct – commission of a serious offense.

3.  While the recommendation for discharge was signed by the Special
Court-Martial convening authority instead of the general Court-Martial convening authority, that error worked in the applicant’s favor because the lowest discharge the Special Court-Martial convening authority could give him was a General Discharge.  However, the General Court-Martial convening authority could have given him a discharge Under Other Than Honorable Conditions, which is the discharge most commonly given for misconduct such as the applicant’s.

4.  It also appears that the commander was also justified in processing the applicant for administrative separation prior to the expiration of his term of service.  While the applicant has succeeded in getting his discharge upgraded based on an administrative oversight that occurred in processing, it does not constitute a basis to grant him additional service credit or pay for service he did not perform, especially since it appears that his discharge was justified.

5.  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

__cd____  __cad___  __rdg___  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.



							Carmen Duncan
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070007400
SUFFIX

RECON

DATE BOARDED
20071030
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19910821
DISCHARGE AUTHORITY
AR 635-200, Chap 5
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
128.0000
3.

4.

5.

6.