IN THE CASE OF:	  

		BOARD DATE: 	        9 July 2009

		DOCKET NUMBER:  AR20090002421 


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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant provides no explanation.

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 November 2000.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

2.  The applicant's record reveals a disciplinary history that includes general counseling statements on the following dates:

	a.  28 June 2001 for receiving an Armed Forces Traffic Ticket,

	b.  7 August 2001 for having his driving privileges revoked,

	c.  23 August 2001 for receiving an Armed Forces Traffic Ticket,

	d.  30 August 2001 for his military appearance (haircut),

	e.  12 October 2001 for failing the Army Physical Fitness Test (APFT), and 
	f.  4 February 2002 for having his post driving privileges revoked and for being flagged for seven on-post citations.

3.  On 26  March 2002, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for violation of the company visitor policy and being disrespectful to a noncommissioned officer (NCO).

4.  The applicant's record reveals additional disciplinary history that includes his acceptance of general counseling statements on 4 August 2002 for insubordination towards an NCO and failure to obey a lawful order and on 23 September 2002 for failure to report.

5.  On 30 October 2002, the applicant accepted NJP under Article 15, UCMJ, for using disrespectful language towards and assaulting an NCO.

6.  The applicant's record reveals additional disciplinary history that includes his acceptance of a general counseling statement on 31 October 2002 for willfully disobeying a lawful order from an NCO and for failure to obey a lawful order.

7.  On 15  November 2002, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for commission of a serious offense.  The reasons cited by the commander were the applicant's treated contempt of an NCO, disrespectful language towards an NCO, assaulting an NCO, and willfully disobeying a lawful order.

8.  On 15 November 2002, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  With advice from counsel, the applicant requested a waiver of his right to an administrative board on the condition that he would receive no less than a general under honorable conditions discharge.

9.  On 18 December 2002, the separation authority approved the recommendation for discharge and directed the applicant receive a General Under Honorable Conditions Discharge Certificate.  On 8 January 2003, he was discharged accordingly after completing 2 years, 1 month, and 23 days of creditable active service with no lost time.


10.  On 18 April 2007, the Army Discharge Review Board (ADRB) found that the separation authority and narrative reason for separation for the applicant’s discharge were both proper and equitable and voted to deny upgrading his discharge.

11.  The applicant's DD Form 214 (Certificate if Release or Discharge from Active Duty) for the period ending 8  January 2003 shows he was discharged under the provisions of paragraph 14-12c(2), Army Regulation 635-200, by reason of misconduct.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c(2) states that Soldiers are subject to separation for commission of a serious offense (abuse of illegal drugs) and that abuse of illegal drugs is serious misconduct.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he received two Article 15s, had numerous general counseling statements, had his post driving privileges revoked, received numerous traffic tickets, was disrespectful towards an NCO, and disobeyed a lawful order.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.


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)                                         AR20090002421



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ABCMR Record of Proceedings (cont)                                         AR20090002421



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