IN THE CASE OF:	  

		BOARD DATE:	  	  21 April 2009

		DOCKET NUMBER:  AR20090001167 


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, correction of his military service records by removing any and all records related to misconduct during his military service, a change to the reason of his discharge, and upgrade of the character of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, while he was in the military he never received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), had no problems in performing his job, kept himself in top physical condition, and was one of the best Soldiers in his unit.

3.  The applicant provides copies of a Georgia Crime Information Center, Decatur, Georgia, Criminal History Record, produced on 3 September 2008; a Parish Verification letter, dated 12 September 2008, subject:  [Applicant]; Georgia Army National Guard (GAARNG), Headquarters, 1st Battalion (Mechanized), 121st Infantry, Winder, Georgia, letter, dated 4 September 2008, subject:  Letter of Recommendation; and a letter from I_______ I_____, dated  15 September 2008.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 

Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel records show he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 27 January 1995 in the Delayed Entry Program (DEP).  He was discharged from the DEP and enlisted in the Regular Army and entered active duty for a period of 6 years on 18 May 1995.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 91P (X-Ray Specialist). 

3.  On 3 May 2000, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b, for a pattern of misconduct.  The reasons for the proposed separation action were a pattern of misconduct ranging from minor infractions (e.g., a speeding ticket, failing to repair, and failing to obey company standard operating procedures) to more serious infractions (e.g., letter of reprimand for misconduct, suspension/revocation of Fort Gordon, Georgia, driving privileges due to driving under the influence (DUI)/drunken driving, and suspension of driving privileges due to reckless driving and lack of insurance).

     a.  The applicant’s administrative separation packet, in pertinent part, contains four DA Forms 4856 (General Counseling Forms), dated 24 September 1996,
24 February 1997, 5 April 1997, and 14 May 1997, that show the applicant was counseled for his suspected involvement in the assault of another Soldier on
23 September 1996; receiving a ticket for speeding on Fort Gordon, on 19 March 1997; losing his Meal Card, a controlled item, on 24 February 1997; and indecent acts with another in violation of Article 134, UCMJ.

     b.  The applicant’s administrative separation packet, in pertinent part, contains a copy of Headquarters, Dwight David Eisenhower Army Medical Center (DDEAMC), Fort Gordon, memorandum, dated 12 May 1997, subject:  Reprimand for Misconduct, that shows the applicant’s company commander reprimanded the applicant for his misconduct on 21 September 1996, in that he viewed two others engaged in consensual sexual intercourse on Fort Gordon, in 

violation of Article 134 (Indecent Acts with Another), UCMJ.  This document also shows that this was an administrative reprimand imposed under Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15, UCMJ.

     c.  The commander stated that he was recommending the applicant receive a general, under honorable conditions discharge.  The applicant was also advised of his rights.

4.  The applicant requested and consulted with legal counsel.  The applicant acknowledged that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant elected not to submit statements in his own behalf.

5.  On 3 May 2000, the company commander reviewed the applicant’s statement of options and choices pertaining to the rights available to him and, based on the circumstances surrounding the applicant’s case, the company commander recommended the applicant be separated from the U.S. Army prior to his expiration term of service (ETS) under the provisions of Army Regulation
635-200, chapter 14, paragraph 14-12b, with a general, under honorable conditions discharge.

6.  On 8 May 2000, the Commander, Troop Command, DDEAMC, Fort Gordon, reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for a pattern of misconduct.  He also recommended waiver of the rehabilitative requirements and that the applicant be issued a general discharge with service characterized as under honorable conditions.

7.  On 10 May 2000, the General Court-Martial Convening Authority and           the authorized separation authority in the applicant’s case approved the recommendation for separation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for a pattern of misconduct.  The separation authority waived the rehabilitative requirements of Army Regulation 635-200, paragraph 1-18, and directed the applicant be separated with a general, under honorable conditions discharge.  The separation authority also determined the applicant had no potential for useful service under the conditions of full mobilization and directed the applicant not be transferred to the Individual Ready Reserve.  Accordingly, the applicant was discharged on 24 May 2000.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation confirms he was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct with separation code “JKA.”  At the time of his discharge the applicant had completed 5 years and 7 days of net active service during the period of service under review.

9.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

10.  The applicant’s military personnel records show he submitted a request to the Army Discharge Review Board (ADRB) for a change in the character and reason of his discharge.  On 18 April 2001, the ADRB, after careful consideration of the applicant’s application, military records, and all other available evidence determined the applicant was properly and equitably discharged.  Accordingly, the applicant’s request for a change in the character and reason of his discharge was denied.  The applicant was notified of ADRB’s decision on 20 April 2001.

11.  The applicant’s military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 10 December 2001, that shows the applicant requested a change to the reason of his discharge and upgrade of the character of his general under honorable conditions discharge to an honorable discharge based on the fact that the charges that were brought against him for DUI were dropped because no such incident occurred.  On 22 March 2002, the ADRB, after careful consideration of his application, military records, and all other available evidence, determined the applicant was properly and equitably discharged.  Accordingly, the applicant’s appeal was denied and he was notified of ADRB’s decision on
29 March 2002.

12.  The applicant's military personnel records show he enlisted in the GAARNG for a period of 1 year on 25 January 2007.  The applicant was honorably discharged from the ARNGUS and GAARNG on 24 January 2008 and transferred to the USAR Control Group (Reinforcement), St. Louis, Missouri.

13.  In support of his application, the applicant provides the following documents.

   a.  Georgia Crime Information Center, Decatur, Criminal History Record, produced on 3 September 2008.  This document shows, in pertinent part, that the applicant was arrested by the Richmond County Sheriff’s Office on 16 December 1999 for driving under the influence of alcohol (a misdemeanor); was found guilty on 11 July 2000; and was sentenced to community service with a $500.00 fine, fees, and probation for 12 months.
     b.  The Parish Verification letter, dated 12 September 2008, subject:  [Applicant], written by Reverend D____ McG_______, Pastor.  Reverend McG_______ certifies that the applicant is a registered member of St. Joseph Parish since 2002 and has been an active member in good standing in the parish.  He adds that the applicant actively participates in the parish ministry, brings adult parishioners together in small groups to deepen their religious relationships, and often volunteers to lead groups and projects.  Reverend McG_______ concludes by stating the applicant will be a positive addition to any endeavor.

     c.  Headquarters, 1st Battalion (Mechanized), 121st Infantry, Winder, letter, dated 4 September 2008, subject:  Letter of Recommendation, written by Sergeant First Class (SFC) M______ D. R___, Human Resources Noncommissioned Officer.  SFC R___ states that the applicant was assigned to the unit as an Administration Clerk and was extremely knowledgeable and proficient in every aspect of his duties.  He also states the applicant served as an example to subordinates and peers, demonstrated the principles of military leadership to ensure all tasks and missions were fully accomplished, and recommends the applicant’s discharge be upgraded to honorable.

     d.  Letter written by I_______ I_____, the younger sister of the applicant, dated 15 September 2008.  Ms. I_____ states the applicant has had a few memories in his life that would devastate the common person, but he has remained a strong and productive person.  She adds he is married with a daughter, has completed his bachelor’s degree in computer science, started a small business, and held a job at all times to support his family.  Ms. ______ concludes by stating that the applicant has changed a great deal and deserves to have his administrative discharge changed.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKA” as the appropriate code to assign RA enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, paragraph 14-12b, based upon a pattern of misconduct.

15.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious 

offense, conviction by civil authorities, desertion, and absence without leave.  This regulation shows, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general, under honorable conditions discharge or an honorable discharge, if such is merited by the Soldier's overall record.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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.

18.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the Official Military Personnel File (OMPF).  This document states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

19.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Chapter 7 (Appeals and Petitions) provides the process and procedures for the transfer and removal of unfavorable information from official personnel files.  Paragraph 7-1 (Policies and standards), in pertinent part, provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military service records should be corrected by removing all records related to misconduct during his military service, changing the reason of his discharge, and upgrading the character of his service to an honorable discharge because he did not have any disciplinary problems during his military service and never received punishment under Article 15, UCMJ.

2.  The applicant provides documentary evidence that shows he was arrested by the Richmond County Sheriff’s Office on 16 December 1999 for driving under the influence of alcohol, was found guilty (emphasis added) on 11 July 2000, and sentenced to community service with a $500.00 fine, fees, and probation for
12 months.  Thus, the evidence the applicant provides substantiates that he was involved in this DUI incident during the period of his military service that is under review.  Moreover, the document serves to undermine the applicant’s contention that he did not have any disciplinary problems and that he was one of the best Soldiers in his unit.

3.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, chapter 14, based on a pattern of misconduct was proper and equitable and in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.  Therefore, the applicant is not entitled to a change to the reason for his discharge.

4.  The applicant’s record of service shows a pattern of misconduct ranging from minor infractions (e.g., a speeding ticket, failing to repair, and failing to obey company standard operating procedures) to more serious infractions (e.g., letter of reprimand for misconduct, suspension/revocation of Fort Gordon, driving privileges due to DUI, and suspension of driving privileges due to reckless driving and lack of insurance).  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust.  The applicant provided insufficient evidence to this Board that the documents in 

question are untrue or unjust in this case.  Therefore, in view of the foregoing, it is concluded that the applicant’s administrative separation packet, including the DA Forms 4856, letter of reprimand, and all other related records are properly filed and should not be removed from the applicant's OMPF.

6.  The applicant's service in the GAARNG, personal achievements, and desire to serve his parish were also carefully considered.  The applicant’s personal achievements and conduct subsequent to his discharge from the RA are commendable, but not so meritorious as to warrant an upgrade of his discharge.

7.  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)                                         AR20090001167



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ABCMR Record of Proceedings (cont)                                         AR20090001167



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