IN THE CASE OF:	  

		BOARD DATE:	        28 AUGUST 2008

		DOCKET NUMBER:  AR20080009900 


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 that his general discharge be upgraded to a fully honorable discharge. 

2.  The applicant provides no statement or argument in mitigation of his application. 

3.  The applicant provides a copy of the Army Discharge Review Board (ADRB) proceedings in his case. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in San Antonio, Texas on 30 October 1997 for a period of 3 years, training in the infantry career management field and a cash enlistment bonus.  He completed his training and was transferred to Fort Campbell, Kentucky for duty as a light weapons infantryman.  He was advanced to the pay grade of E-4 on 1 June 1999. 

2.  On 26 January 2000, he reenlisted for a period of 4 years, airborne training, and a selective reenlistment bonus (SRB).  

3.  He completed his airborne training and was transferred to Fort Polk, Louisiana for assignment to an Opposing Forces unit at the Joint Readiness Training Center (JRTC).  He was promoted to the pay grade of E-5 on 1 September 2001.

4.  On 11 July 2002, he was transferred to Korea and was assigned to the 8th Army Honor Guard Company for duty as a squad leader.  

5.  On 6 June 2003, nonjudicial punishment (NJP) was imposed against the applicant for striking a noncommissioned officer (NCO) in the face with a closed fist.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.    

6.  On 24 July 2003, NJP was imposed against him for the wrongful possession of a Schedule III controlled substance (Anabolic steroids).  His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay, extra duty, and restriction.  The applicant did not appeal his punishment.

7.  Although not present in the available records, it appears that the applicant’s commander had initiated administrative separation proceedings against the applicant.  However, before the discharge could be processed to completion, charges were preferred against the applicant for disobeying a lawful regulation (driving without a valid license), drunk driving, and breaking restriction.

8.  On 6 October 2003, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone, and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive an under other than honorable conditions, and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement from his counsel in his behalf whereas his counsel requested that his request for discharge be approved because it was harsher that he normally would have received in a trial by court-martial, imposition of NJP or and administrative separation board.  She also stated that the applicant was married with a child on the way and requested that the discharge be approved as being in the best interests of all concerned. 

9.  The appropriate authority (a lieutenant general) approved his request on 16 October 2003 and directed that he be discharged under other than honorable conditions. 



10.  Accordingly, he was discharged under other than honorable conditions on 25 October 2003, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 years, 11 months, and 26 days of total active service.

11.  On 12 November 2007, he applied to the ADRB for an upgrade of his discharge to fully honorable and a change to his REENTRY (RE) Code to a “1.”  He was granted a personal appearance before that board on 5 May 2008 and the ADRB voted to upgrade his discharge to a general discharge, to change the narrative reason for separation to “Secretarial Authority,” and to change his RE Code to a “3.”

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  An undesirable discharge was then and still is normally considered appropriate.

13.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.

14.  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.  Notwithstanding the actions by the ADRB, 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, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s record of service has been reviewed; however, his service is not sufficiently mitigating to warrant relief when compared to the nature of his misconduct.  His service simply does not rise to the level of a fully honorable discharge.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

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

__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)                                         AR20080009900



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009900



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1