IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080016052 


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 reconsideration of his earlier request for an upgrade of his discharge.

2.  The applicant states that his misconduct was a result of family problems and Army training.

3.  The applicant provides a self-authored statement, dated 2 September 2008, in support of his request.

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 AR20080008504 on 21 August 2008.

2.  The applicant submitted a new argument in the form of a self-authored letter, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 9 January 1987 and was trained in military occupational specialty 54B (Chemical Operations Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

4.  The applicant's records also show he was awarded the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any achievements or special recognition throughout his service.

5.  On 14 December 1987, the applicant was arrested by civil authorities for disorderly conduct/criminal mischief (2nd Degree).  He subsequently appeared before a municipal court and pled guilty to the offense of disorderly conduct and was fined.  He was also found guilty of criminal mischief and was fined.

6.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 23 December 1987, for failing to go at the prescribed time to his appointed place of duty, on or about 19 December 1987.  His punishment consisted of 14 days of restriction and 14 days of extra duty; and

	b.  on 27 January 1988, for wrongfully using provocative language towards a noncommissioned officer.  His punishment consisted of reduction to private (PV2)/E-2 (suspended for 30 days), forfeiture of $175.00 pay for one month (suspended for 30 days), 14 days of extra duty, and 14 days of restriction.  However, on 22 March 1988, the suspension of punishment to reduction to PV2/E-2 and forfeiture of $175.00 pay was vacated as a result of the applicant's driving under the influence (DUI) of alcohol charge and was ordered executed.

7.  On 12 April 1988, the applicant received a general officer memorandum of reprimand (GOMOR) for his DUI.

8.  On 23 June 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct.

9.  On 23 June 1988, the applicant acknowledged receipt of the commander's intent to separate him.  He further consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by an administrative separation board and personal appearance before that board.  He also elected not to submit a statement on his own behalf.

10.  On 27 June 1988, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  The immediate commander cited the applicant's pattern of misconduct with military and civil authorities.

11.  On 30 June 1988, the applicant’s intermediate commander recommended denial of the applicant's request for an administrative separation board.  He further recommended approval of the applicant’s discharge for misconduct and that the applicant be given a general discharge.

12.  On 1 July 1988, the separation authority approved the waiver of the counseling and rehabilitative requirements and the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct, and directed the applicant be furnished a general (under honorable conditions) discharge.  Accordingly, the applicant was discharged on 12 July 1988.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further shows he completed a total of 1 year, 6 months, and 4 days of creditable military service.

13.  In his self-authored statement, dated 2 September 2008, the applicant argues that if his chain of command honored his many requests for further Army education (primary leadership development course and basic noncommissioned officer course attendance) or allowed him to transfer to another unit, his misconduct would have never happened.  He adds that he was taught by his father and by the Army never to leave a comrade behind and that the civil arrest happened when he and his buddy were trying to help another friend who was in a bad situation.  He also states that in December 1987 he did not report for duty because he was either performing guard duty or was ill with pneumonia.

14.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

16.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's new argument with respect to helping his buddy and the difficulties he encountered with a transfer to another unit is noted.  However, it is not sufficiently mitigating to upgrade his discharge.

2.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His record of service shows two instances of nonjudicial punishment, a civil conviction, a DUI, and a GOMOR.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

3.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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 AR20080008504, dated 21 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)                                         AR20080016052



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ABCMR Record of Proceedings (cont)                                         AR20080016052



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