IN THE CASE OF:	  

		BOARD DATE:	  14 May 2009

		DOCKET NUMBER:  AR20090000669 


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 discharge be upgraded and that his reason for separation be changed to more favorable terms. 

2.  The applicant states, in effect, that at the time of the incident he was drinking heavily and that the effects of alcohol impaired his judgment.  He states he was depressed, lonely, and that his wife was pregnant.  He states his commanding officer recommended he accept the nonjudicial punishment offered, but he elected a chapter 10 separation.  He regrets his decision to request discharge, states he has matured, would like to qualify for Army benefits, and would like to be considered for a career in the U.S. Army.  He further states he has worked for 3 years as a civil servant in the Federal government.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), transition orders, his enlistment contract, multiple copies of award orders, multiple copies of enlisted evaluation reports, and a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 July 1997.  He completed basic and advanced individual training and was awarded military occupational specialty 92Y (Unit Supply Specialist).  He successfully completed his first term of enlistment and was honorably separated on 1 July 2000.  Records show he completed 3 years of net active duty service during this enlistment period.  At the time of his separation, the applicant's rank was specialist/pay grade E-4.

2.  On 2 July 2000, the applicant enlisted in the New York Army National Guard (ARNG), entering in the rank and grade of specialist/pay grade E-4.  

3.  On 17 January 2001, the applicant was honorably separated from the New York ARNG.  He was issued an NGB Form 22 which shows he had successfully completed 6 months and 16 days of net inactive service in the New York ARNG.  He was immediately transferred to the U.S. Army Reserve Control Group (Annual Training.) 

4.  On 18 January 2001, he enlisted in the Regular Army for a 3-year enlistment period.

5.  The applicant's military personnel record shows that he served in combat operations in direct support of Operation Iraqi Freedom.  The applicant served in Iraq from 23 February 2003 to 23 June 2003.  There are no acts of valor recorded in the applicant's record.  

6.  On 1 December 2003, the applicant was promoted to sergeant/pay grade E-5.

7.  On 21 March 2005, court-martial charges were preferred against the applicant.  The facts and circumstances pertaining to the commanding officer's reason for preferring court-martial charges are not available for the Board to review. 

8.  On 7 April 2005, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial, directed that the applicant be reduced to private/pay grade E-1, that he be discharged under other than honorable conditions, and that he not be transferred to the Individual Ready Reserve.

9.  On 23 April 2005, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200, by reason of conduct triable by court-martial.  Records show he completed 4 years, 3 months, and 6 days of net active service during this period of active duty and that his service characterization was under other than honorable conditions.  

10.  On 7 June 2006, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  In support of his application, the applicant provided multiple copies of award orders which show that he received two Army Achievement Medals and one Army Commendation Medal for meritorious duty performance as a unit supply specialist during the period 5 February 2001 to 1 March 2004.  He also provided copies of award orders that show he was awarded the Army Good Conduct Medal (2nd Clasp) and the Driver Badge for Wheeled Vehicles.  Finally, the applicant submitted a Noncommissioned Officer Evaluation Report with a through date of February 2002 and a Service School Academic Evaluation Report with an ending date of 20 June 2002 that shows he met or exceeded his performance objectives and academic standards. 

12.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part that a member who had committed an offense or offenses for which the authorized punishment included 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 trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.  

13.  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.

14.  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

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his alcohol consumption, depressed state, and the burden of family responsibilities impaired his ability to make good decisions.  He contends that he has changed and is more mature with steady employment with the Federal government as a civil servant.  He contends that he made one mistake, and now would now like to enlist in the U.S. Army for he would like Army benefits.  He also contends that the reason for his separation should be changed to more favorable terms. 

2.  Although the applicant's complete separation packet was not available for the Board's review, in order for him to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge. The applicant would have been afforded the opportunity to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

3.  While the Board acknowledges the applicant's statement that he is employed as a civil servant for the Federal government, that he has a young family, and that he genuinely regrets his actions that led to court-martial charges being preferred and his subsequent request for discharge, these matters of mitigation are insufficient to change a properly issued discharge.  

4.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  The type of discharge and the reason for separation are appropriate considering the known facts of the case.  Therefore, there is no basis for warranting an upgrade of the applicant's under other than honorable conditions discharge to either a general, under honorable conditions or an honorable discharge.

5.  In order to justify correction of a military record the applicant must, 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.

6.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's under other than honorable discharge characterization of service.




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)                                         AR20090000669





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000669



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1