IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080015621 


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 request to upgrade his general discharge to an honorable discharge be reconsidered.  

2.  The applicant essentially states that his request that his general discharge be upgraded to an honorable discharge should be reconsidered.

3.  The applicant provides a memorandum, dated 28 June 2008, signed by a class commander of an unknown course and other student leaders; and a letter, dated 25 July 2008, from a Member of Congress to the Office of the Chief, Legislative Liaison in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080010746, on 12 August 2008.

2.  The applicant provided a memorandum, dated 28 June 2008, signed by a class commander and other student leaders from an unknown course, but what appears to be some type of law enforcement course.  This is new evidence that will be considered by the Board.  This memorandum essentially recognized and commended the applicant for always putting his class before himself.  It also stated that the applicant arrived early every day in the high ability skills of vehicle operations to take over the responsibility of preparing the radios and medical kits. It further stated that the applicant went out of his way to bring in generators and fans and set them up in order to provide the class and the instructors with a little more comfort without expecting anything in return.  Additionally, it essentially stated that the authors of this memorandum believed that too much emphasis and focus is on finding and punishing accidents, mistakes, and wrong-doings, and not nearly enough on commending certain individuals such as the applicant on their qualities and actions which truly embody what the law enforcement community and brotherhood is all about…loyalty, duty, respect, selfless service, honor, integrity, and the personal courage to do right for your brothers and sisters.

3.  The applicant’s military record shows he enlisted in the Regular Army (RA) and entered active duty on 26 June 1990.  His record contains six General Counseling Forms (DA Form 4856) that were issued the applicant for the following infractions he committed during the period between 11 April and         15 August 1991:  bad checks; disobeying a lawful order; failing the Army Physical Fitness Test (APFT); being arrested for speeding and carrying a concealed weapon; and for being disrespectful in language.

4.  On 14 August 1991, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content was normal, he was fully alert and oriented, he had an unremarkable mood, his thinking process was clear, and his memory was good.  It was also determined that the applicant was mentally responsible, met retention requirements and had the mental capacity to understand and participate in separation proceedings.

5.  On an unknown date, the applicant was notified by his unit commander that action was being taken to separate him from the Army under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance.  The reasons cited for the action was the applicant’s adverse affect on good order, morale and discipline.

6.  On 23 September 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of those rights.  In his election of rights, the applicant acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he received a GD.  Subsequent to this counseling, he elected to submit a statement in his own behalf.  

7.  In his statement, the applicant indicates, in effect, that he was not treated fairly from the very first day of assignment to his unit.  He claims that counseling statements contained in his separation packet caused his character of service to be downgraded to a GD.  He also states that he was never arrested, read any rights, handcuffed, or restrained by any measure.  However, he admits that he was taken to a police station for speeding and carrying a concealed weapon and later tried in court and found not guilty.  The applicant also alleges that he was consistently looked down at and disrespected.  He states that while assigned in Saudi Arabia, he never worked in his MOS, he was treated like the platoon maid, slave or butler; picked on; and jumped in his sleep.  He indicates he was ignored, and laughed at, when he requested to be put on levy or to be transferred.  His chain of command unfairly used their authority against him.

8.  On 25 September 1991, the separation authority approved the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200 and directed that the applicant receive a GD.  On 4 October 1991, the applicant was discharged accordingly. 

9.  On 19 May 200, the Army Discharge Review Board (ADRB) determined that that applicant’s GD was proper and equitable.

10.  Army Regulation 635-200 (Enlisted Personnel), in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation provided for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the Soldier will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

11.  Army Regulation 635-200, paragraph 3-7a also provides, in pertinent part, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request to upgrade his general discharge to an honorable discharge should be reconsidered.  
2.  The memorandum provided by the applicant regarding his conduct in a recent class was noted.  However, good post service conduct alone is not a basis for upgrading a discharge.  
  
3.  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.

4.  The applicant's entire record of service was considered, which included his service in Southwest Asia.  However, the offenses committed by the applicant outweighs his record of military service that upgrade of his discharge cannot be justified.  In view of the foregoing, there is no basis for upgrading the applicant's general discharge to an honorable discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080010746, dated 12 August 2008.




      _______ _ 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)                                         AR20080015621



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ABCMR Record of Proceedings (cont)                                         AR20080015621



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