IN THE CASE OF:	  

		BOARD DATE:	       19 August 2008

		DOCKET NUMBER:  AR20080009935 


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 rank be restored to Sergeant (SGT/E-5).

2.  The applicant states his rank was "taken under inequitable circumstances" and he does not believe he was treated fairly.

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 13 June 2000 through 16 July 2005.  The highest rank he achieved was that of SGT.  He served as a unit supply specialist.

2.  The applicant's records show he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three separate occasions.

	a.  At Katterbach, Germany, on or about 3 June 2002, he did, without authority, fail to go at the time prescribed to his appointed place of duty; at Katterbach, Germany, on or about 5 June 2002, he was disrespectful in deportment toward a Staff Sergeant; and on or about 5 June 2002, he willfully disobeyed a lawful order from a Staff Sergeant.  As punishment, he was reduced from Specialist (SPC/E-4) to Private First Class (PFC/E-3), suspended, to be automatically remitted if not vacated before 12 March 2002 [sic]; and he was made to perform 7 days of extra duty.

	b.  At or near Shipton Kaserne, Ansbach, Germany, on or about 0630 hours, 3 May 2005, he did, without authority, fail to go at the time prescribed to his appointed place of duty; on or about 1300 hours, 3 May 2005, without authority, he failed to go at the time prescribed to his appointed place of duty; on or about 4 April 2005, he was disrespectful in deportment toward a Sergeant First Class; on or about 4 April 2005, he willfully disobeyed the lawful order of a Sergeant First Class; and on or about 8 May 2005, he was derelict in his duties.  As punishment, he was reduced from SGT to SPC, made to forfeit $998.00 of pay per month for 1 month, and restricted and made to perform extra duty for 45 days, suspended, to be automatically remitted if not vacated before 10 August 2005.

	c.  On or about 25 May 2005, he did willfully disobey the lawful order of a Sergeant First Class,  As punishment, he was reduced from SPC to Private (PVT/E-1), made to forfeit $667.00 of pay per month for 2 months, and given 45 days of restriction and extra duty.

3.  On 27 June 2005, the applicant's commander informed the applicant that he was initiating action to separate him for patterns of misconduct under the provisions of Army Regulation 635-200, chapter 14.  The commander stated he was recommending a general discharge (GD), under honorable conditions.  The applicant acknowledged notification on the same date.

4.  On 29 June 2005, the applicant consulted with legal counsel who explained the chapter 14 discharge process to him and the rights available to him.  The applicant chose to submit a statement in his own behalf.

5.  On 1 July 2005, the applicant's commander forwarded to the approving authority his recommendation to separate the applicant under the provisions of chapter 14, Army Regulation 635-200.  The separation packet was reviewed by a Staff Judge Advocate on 6 July 2005 and found to be legally sufficient.  On an unknown date in July 2005, the approving authority approved the applicant's separation and directed a GD be issued.

6.  The applicant was separated on 16 July 2005.  His rank at the time of his discharge was PVT due to his 25 May 2005 NJP.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his rank restored to SGT because he was not treated fairly.

2.  The applicant was a noncommissioned officer (NCO), yet he frequently failed to show up for work, was often disrespectful to senior NCO's, and disobeyed lawful orders.  His behavior was unacceptable for a Private; it was deplorable for a junior NCO.

3.  The applicant’s chapter 14 discharge proceedings were conducted in accordance with law and regulations.  The applicant's frequent acts of indiscipline could have, and should have resulted in an under other than honorable conditions (UOTHC) discharge; however, he was afforded a GD based upon the overall record of his military service.  The applicant was treated more than fairly in the discharge process.

4.  The applicant's reduction to PVT/E-1 was a function of his misconduct and his punishment under Article 15, Uniform Code of Military Justice.  There is no error or injustice.

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

____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)                                         AR20080009935





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ABCMR Record of Proceedings (cont)                                         AR20080009935



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