IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080001148 


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 correction of his records to show that he was retired from the Army and that he be furnished all benefits and entitlements as a result of this correction.

2.  The applicant states that he completed 17 years and 10 months of honorable service prior to being discharged in March 2006.  He states that he is a proud Operation Iraqi Freedom veteran and that he is requesting retirement benefits and entitlements based upon his overall years of selfless and dedicated service.

3.  The applicant provides in support of his application a copy of a self authored letter addressed to this Board dated 28 December 2007; a copy of a memorandum from a Judge Advocate, Senior Defense Counsel, addressed to the Commander, III Corps and Fort Hood, Fort Hood, Texas, dated 21 February 2006; a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); and a copy of a Privacy Release Form dated 28 December 2007

CONSIDERATION OF EVIDENCE:

1.  On 19 May 1988, the applicant enlisted in the Regular Army in Montgomery, Alabama, for 3 years, in the pay grade of E-1.  He successfully completed his training as an avenger crewmember.  He remained on active duty through a series of reenlistments.  On 1 May 2003, he was awarded a motor transport operator military occupational specialty.

2.  The available records show that on 2 September 2004, after an Army Regulation 15-6 investigation and a Criminal Investigation Division investigation had been accomplished, the applicant was furnished a General Officer Memorandum of Reprimand (GOMOR) for engaging in the sabotage of 418th Transportation Company vehicles during Operation Iraqi Freedom.  According to the available information, the applicant was at Camp Arifjan, Kuwait, on 24 July 2003, when investigations were initiated against him for placing sand in the engines of several vehicles and intentionally downshifting the vehicles to a low gear while at a high rate of speed, which resulted in vehicles becoming non-mission capable in a hostile fire zone.  According to the information contained in the GOMOR, the applicant also discouraged Soldiers from reporting his misconduct and he engaged in the maltreatment of the Soldiers who reported the sabotage.  

3.  In the GOMOR, the applicant was informed by the Commanding General (CG) that as a noncommissioned officer in the United States Army, he was expected to fully support the Army's mission, particularly when his unit is in a combat environment and to set an example for Soldiers to follow.  He was further informed by his CG that he had failed as a noncommissioned officer; that he lacked the moral courage and integrity to refrain from acts detrimental to the mission of his unit and of the Army; and that his hazing of a Soldier who reported the sabotage was abusive in nature and created a climate in which Soldiers feared reprisal for reporting misconduct.  The applicant was told by his CG that he was considering filing the reprimand in his Official Military Personnel File and that he had 3 days to acknowledge receipt of the GOMOR along with any matters in extenuation, mitigation, or rebuttal that he wished to submit for consideration.

4.  The applicant acknowledged receipt of the GOMOR on 8 September 2004 and on 21 September 2004, he submitted a rebuttal to the GOMOR requesting that the CG file the GOMOR in his local personnel file for a period of two years, or until he was transferred to the jurisdiction of another general court-martial convening authority.  He stated that he was not guilty of engaging in the sabotage of vehicles, discouraging Soldiers from reporting such sabotage, or maltreatment of the Soldier who reported the sabotage.   He stated that the evidence against him was very questionable and highly suspect and to destroy his military career based upon this evidence would be a grave miscarriage of justice.  The applicant stated that if the CG should decide to file the GOMOR in his OMPF, he desired to have a personal appearance before the CG, with 





additional individuals present to help him plead his case.  In his rebuttal, the applicant went on to list the reasons why he was not guilty of the allegations made against him and to make reference to his overall record of service.  The applicant submitted in his own behalf, a number of letters and sworn statement from other Soldiers attesting to his good conduct and his overall record of service.

5.  On 28 October 2004, the CG considered the circumstances surrounding the GOMOR and the recommendations made by the applicant's chain of command and he directed that the GOMOR be permanently filed in the applicant's OMPF.

6.  On an unknown date, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct, commission of a serious offense. His commander cited the GOMOR dated 2 September 2004 and a civilian conviction, to which he pled guilty of assault with bodily injury on his wife, another enlisted service member, as the basis for his recommendation for discharge.  He acknowledged receipt of the notification on 18 July 2005 and, after consulting with counsel, he opted to have his case considered by an administrative separation board.

7.  A board of officers convened on 9 December 2005, to determine whether the applicant should be separated from the Army prior to the expiration of his term of service (ETS) due to misconduct.  The board found that the applicant did not place sand in the engines of several of the 418th Transportation Company's vehicles and intentionally downshift the same vehicles to a low gear while traveling at a high rate of speed in an attempt to disable the vehicles' transmissions.  However, the board found that he did plead guilty to assault with bodily injury to his wife on 18 May 2005.  The board recommended that the applicant be separated from the Army prior to his ETS and that he be furnished a discharge under other than honorable conditions.  The board also recommended that his discharge be suspended for a period of 6 months.

8.  The appropriate authority approved the recommendation for discharge on 16 March 2006.  However, he disapproved the board's recommendation to suspend the applicant's discharge for 6 months.  Accordingly, on 28 March 2006, the applicant was reduced to the lowest enlisted grade and he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, commission of a serious offense.  He had completed 17 years, 10 months, and 10 days of net active service.



9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge 25 July 2006.  On 27 September 2007, the ADRB upgraded the applicant's discharge to under honorable conditions (general) and restored him to the pay grade of staff sergeant (E-6).  The ADRB determined that the applicant’s characterization of service was inequitable.  However, the ADRB also determined that his reason for discharge was both proper and equitable.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for 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.

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.  The reasons for his discharge were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, the fact that the ADRB upgraded his discharge from under other than honorable conditions to under honorable conditions is not a basis for granting him retirement or retirement benefits.  He did not retire from the Army with 20 years of service.  He was discharged from the Army for misconduct, commission of a serious offense.  He completed 17 years, 10 months, and 10 days of net active service and he has provided insufficient evidence to show that his reason for discharge is in error or unjust.  Therefore, he is not entitled to be awarded a Regular Army retirement and retirement benefits.

4.  In order to justify correction of a military record the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080001148



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ABCMR Record of Proceedings (cont)                                         AR20080001148



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