IN THE CASE OF:	  

		BOARD DATE:	        4 August 2009

		DOCKET NUMBER:  AR20090005544 


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 an upgrade of his general discharge (GD) under honorable conditions to a fully honorable discharge.

2.  The applicant states that his sergeant discriminated against him by calling him racial names, attempted to separate him for mental problems, and that he made threatening racial remarks against him.  He adds that he made a complaint against his sergeant but the chain of command did not rule in his favor.

3.  The applicant provides a copy of a memorandum, dated 8 August 2007, in which he requested an emergency transfer in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 7 June 2007.  He completed basic combat and advanced individual training and was awarded military occupational specialty 42A (Human Resources Specialist).  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.  He was assigned to the 793rd Military Police Battalion, Bamberg, Germany.

2.  The applicant’s records further show he was awarded the National Defense Service Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.

3.  On 9 August 2007, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in deportment towards a noncommissioned officer (NCO) on or about 23 July 2007, failing to go at the time prescribed to his appointed place of duty on or about 23 July 2007, and for disobeying a lawful order on 1 August 2007.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $357.00 pay for 1 month (suspended until 3 February 2008), 14 days of restriction, and 14 days of extra duty.  He appealed his punishment on 21 September 2007; however, on 2 October 2007, his appeal was denied.

4.  On 18 September 2007, the suspension of the applicant’s punishment to reduction to PFC/E-3 imposed on 9 August 2007 was vacated.

5.  The applicant’s records reveal an extensive history of counseling statements by several members of his chain of command for various reasons including failure to report, failure to be at his appointed place of duty at the prescribed time, failure to live up to Army values by failing to demonstrate integrity, leaving his place of duty without being properly relieved, failure to follow orders, failure to show up for physical fitness training, and for being disrespectful towards NCOs.

6.  On 27 July 2007, the applicant was referred by his immediate commander to a mental health evaluation due to his behavior, the statements that he made to conduct physical violence against other Soldiers and his claim that unit members were stalking him.  The clinical evaluation indicated the applicant did not meet the criteria for a psychiatric diagnosis and was accordingly cleared by the clinical psychologist for any administrative actions deemed appropriate by his commander. 

7.  On 11 October 2007, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for patterns of misconduct, citing the applicant’s prior Article 15 for being disrespectful towards a senior NCO, constantly failing to be at his appointed place of duty, disobeying lawful orders, being disrespectful to others, lying about appointments that he did not make, using racial slurs towards others, refusing to do the basic Soldiers skills training, and showing a desire to get out of the Army.

8.  The applicant’s records show he refused to sign the notification memorandum acknowledging the commander’s intent to recommend separation.  However, on 12 October 2007, he consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and of the type of discharge and its effect on further enlistment or reenlistment.  The applicant acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further requested consideration of his case by an administrative separation board, if eligible, and appearance before an administrative separation board.  He further elected not to submit a statement in his own behalf.

9.  On 17 October 2007, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct.  The commander recommended that the applicant be separated with a general discharge.

10.  On 17 October 2007, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(b) of Army Regulation 635-200 with a general discharge. 

11.  On an unknown date in October 2007, the applicant’s senior commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(b) of Army Regulation 635-200 with a general discharge. 

12.  On 26 October 2007, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be issued a general discharge, under honorable conditions.  On 6 November 2007, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged by reason of a pattern of misconduct with a character of service of under honorable conditions (general).  This form further confirms that he completed a total of 5 months of creditable active military service. 

13.  On 24 February 2009, the Army Discharge Review Board denied the applicant’s request an upgrade of his discharge.

14.  The applicant submitted a copy of a self-authored memorandum, dated 8 August 2007, not addressed to any specific person or office, in which he states that his sergeant used profanity and threatened him with violence on three different occasions and that he wanted an immediate emergency transfer to another unit as the actions of his sergeant were affecting his (the applicant’s) performance.  


15.  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.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded.

2.  The evidence of record shows that the applicant displayed a pattern of misconduct as evidenced by his nonjudicial punishment and extensive history of counseling statements for various infractions.  Accordingly, his commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

3.  Contrary to the applicant’s contention that his sergeant used racial name-calling, the applicant’s separation memorandum, dated 11 October 2007, indicates that he, not his sergeant, used racial slurs towards others.  

4.  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 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)                                         AR20090005544



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ABCMR Record of Proceedings (cont)                                         AR20090005544



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