IN THE CASE OF:	  

	BOARD DATE:	  24 JUNE 2008

	DOCKET NUMBER:  AR20080004023 


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, in effect, that his under other than honorable conditions discharge be upgraded to an honorable discharge, that the narrative reason for separation be changed and the reinstatement of veteran’s benefits.

2.  The applicant states, in effect, that he made every effort to become a model citizen by obtaining his Associates Degree from Central Texas College and he is pursuing a Bachelors Degree.  He is considering reentry into the Armed Forces.  He is also requesting full veteran's benefits (to include government employment opportunities and security clearance access).  He believes that he accomplished more good than bad during his military service and he benefited the Army more than he caused problems.  However, a wrong is still a wrong.

3.  He further states that he was selected Noncommissioned Officer (NCO) of the year for 1st Cavalry Division, 1st Brigade; NCO of the year for the Aviation Brigade, 2nd Infantry Division; and a candidate for the Audie Murphy Board.  He was selected as an E-5 for the Battalion S-3 M1A2 SEP Tank Gunner above numerous staff sergeants (E-6) within the Battalion.  He was an honor graduate from the Primary Leadership Development Course (PLDC), Fort Hood, Texas, and was acting first sergeant for a month at Company D, 3rd Infantry Division.

4.  He continues that he was responsible for Army equipment in excess of  
100 million dollars, completed 800 hours of military correspondence courses,  
50 college credits and distinguished himself numerous times by scoring 900 out of a 1000 point scale on the M1A1/A2/A3 SEP Tank.  He also attended many NCO professional development schools; therefore, one incident should not be the deciding factor in one's career.  He has served his country proudly as a good Soldier and is asking that his good service outweigh the bad so that his discharge may be upgraded to the highest he could receive for serving his country.

5.  The applicant provides a copy of two Honorable Discharge Certificates; a Three Star Letter from Headquarters, III Corps and Fort Hood, Texas; a Letter of Commendation; memorandum for Soldier of the Quarter; memorandum of notification for participation and promotion in the Armor Force Excellence in Armor Program; Certificate of Achievement from the United States Army Armor Center; DA Form 4187 (Personnel Action); Certificate of Completion from PLDC; two DA Forms 1059 (Service School Academic Evaluation Reports) for PLDC and the Basic NCO Course (BNCOC); Department of the Army Certificate and Permanent Orders Number 353-1, dated 19 December 2002 for the Army Good Conduct Medal; a photograph of the applicant; and a Central Texas College Certificate for an Associates Degree in General Studies.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 24 August 1999.  He completed the necessary training and was awarded military occupational specialty (MOS) 19K (Armor Crewman).  He served in that MOS until he was discharged under other than honorable conditions.  The highest pay grade he achieved was pay grade E-6.

2.  On 10 June 2005, the applicant's commander requested a commander's Inquiry in reference to the applicant and two other junior Soldiers for violating General Order Number 1 (Prohibitions, of the Introduction, Possession, Sale, Transfer, Manufacture, or Consumption of any Alcoholic Beverages), lying to a commissioned officer, and obstructing justice.

3.  Between 9 June 2005 and 15 June 2005 several sworn statements were obtained that describe the incident that involved the applicant and two other junior Soldiers pertaining to the consumption of alcoholic beverages in their room.  The applicant, at the time an E-6, helped purchase alcoholic beverages with the junior Soldiers and brought it into the area of operation.  He consumed alcohol, mixed the alcohol with juice and hid it inside a bottle, and made a false statement to a commissioned officer with the intent to deceive the officer of his wrong doing.

4.  On 3 July 2005, charges were preferred against the applicant for four specifications: one for dereliction of the performance of his duties in that he willfully and knowingly allowed juniors Soldiers under his direct supervision to purchase alcohol in violation of paragraph 5(a), 42nd Infantry Division Mechanized General Order Number 1 dated 28 January 2005; one of specification of violating a lawful order by wrongfully having in his possession an alcoholic beverage containing greater than .05 alcohol by volume; one specification of, with the intent to deceive a commissioned officer, making a false statement "No, there is no alcohol in the bottle”; and one specification of wrongfully soliciting his junior Soldiers to make a false official statement to the chain of command that he had not assisted the Soldiers in purchasing alcohol, a statement that was totally false.

5.  On 3 July 2005, the chain of command recommended that the charges against the applicant be referred to Special Court-Martial empowered to adjudge a Bad Conduct Discharge.

6.  On 6 August 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge.  The applicant was advised that he may submit any statements he desires in his own behalf, which will accompany his request for discharge.  The applicant did not submit a statement in his own behalf.

8.  On 27 August 2005, the chain of command forwarded his recommendation for separation to the approving authority.  In the recommendation, it was stated that the applicant purchased alcohol with his Soldiers from a Local National, while on patrol, a violation of General Order Number 1, an offense that displays extremely poor judgment and an inability to lead Soldiers.  The appropriate disposition was to approve the request for discharge in lieu of court-martial.  The offense, while serious, should cost the applicant his career in the U.S. Army but should not inflict upon him a Federal conviction.  His misconduct was unacceptable and he should be discharged under other than honorable conditions, as his misconduct set a poor example for junior Soldiers and tarnished his military service.

9.  On 3 September 2005, the approving authority approved the applicant's request and directed the applicant be discharged from the U.S. Army for the good of the service and that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was reduced to pay grade E-1.

10.  On 13 October 2005, the applicant was discharged.  He had completed a total of 6 years, 1 month, and 20 days of Net Active Service This Period.

11.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table
2-3, states that the SPD code of KFS denote discharge for the good of the service in lieu of court-martial.

12.  The Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that an SPD code of KFS is assigned an RE code of RE-4.

13.  The applicant applied to the Army Discharge Review Board (ADRB) on 
28 December 2006.  On 4 March 2008, ADRB reviewed the applicant's record and determined that his discharge was proper and equitable and denied the upgrade for a change in character of service and the reason for his discharge.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7b, 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 contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge, that his narrative reason for separation should be changed and that his veteran’s benefits should be reinstated.

2.  The applicant voluntarily requested to be discharged for the good of the service in lieu of a trial by a court-martial acknowledging he was guilty of the charges against him.  

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 applicant’s characterization of service and his narrative reason for separation are appropriate based on the facts in the case.

5.  The applicant’s accomplishments and achievements were considered.  However, his misconduct displays extremely poor judgment.  Therefore, his service is not sufficiently mitigating to grant the relief sought.

6.  Eligibility for veteran's benefits (to include security clearance access and employment opportunities) does not fall within the purview of this Board.  Furthermore, the Board does not grant relief solely for the purpose of gaining these benefits and opportunities.  

7.  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 that requirement.






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)                                         AR20080004023



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ABCMR Record of Proceedings (cont)                                         AR20080004023



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