IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090006300 


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. 

2.  The applicant states, in effect, that he has come to understand the error of his ways.  He has accepted responsibility for his actions and he is attempting to improve himself.  He wants to join the National Guard so that he can continue to serve the Nation.  He also intends to obtain a college degree and pursue a career in law enforcement; however, law enforcement positions require an honorable discharge.  He can perform the duties, but the discharge provision is holding him back.  He was discharged for simple mistakes that were not criminal acts at all.  He had many achievements and he was decorated many times during his brief period of service.

3.  The applicant provides, in support of his request, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a verification of his social security number; a birth registration certificate showing he was born in Webb County, Texas; and an unsigned letter, dated 10 February 2006, [apparently from his defense counsel] to the chain of command asking that he be retained rather than discharged.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for 5 years and entered active duty on 4 January 2001.  He completed training as a radio/communications security equipment repairman, was stationed at Fort Bragg, North Carolina and advanced to pay grade E-4.  
2.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice as follows: 

	a.  on 9 July 2002, for failure to go to his appointed place of duty, on 11 May, 16 May, and 18 May 2002; and 26 June and 29 June 2002;

	b.  on 26 July 2004, for being disrespectful towards a noncommissioned officer on 17 May 2004, for failure to go to his appointed place of duty on 
11 March and 23 June 2004, and for willfully disobeying a lawful order from a noncommissioned officer on 30 June 2004;

	c.  on 11 October 2005, for failure to go to his appointed place of duty on 
4 October 2004, his punishment was suspended until 11 January 2006.  However, on 13 October 2005 the suspension was vacated after the applicant failed to go to his appointed place of duty;

3.  The applicant was counseled about each of the above offenses and numerous others offenses.   

4.  On 12 January 2006, during a mental status evaluation, the applicant's behavior was determined to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal and his memory was good.  It was also determined that the applicant had the capacity to understand and participate in separation processing and he was mentally responsible and met retention standards.  No evidence of a psychiatric condition warranting separation through medical channels was found. The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command. 

5.  The company commander recommended the applicant be separated with a general discharge due to a pattern of misconduct.  

6.  The applicant consulted with counsel, acknowledged that he did not have a right to have a board of officers consider his case because he had completed less than 6 years of active military service.  He also acknowledged that he was not being considered for discharge under other than honorable conditions.  He indicated that he would submit statements in his own behalf; however, a statement is not available.

7.  The separation authority concluded that rehabilitation requirements had been met.  He approved the recommendation and directed a general discharge be issued.

8.  Accordingly , the applicant was separated, on 10 March 2006, under the provisions of Army Regulation 635-200, chapter 14, for misconduct, with a general discharge under honorable conditions after completing 5 years,               2 months, and 7 days of creditable active service with no lost time.  His DD Form 214 shows his awards included the Army Commendation Medal, the Army Achievement Medal, and the Army Good Conduct Medal.

9.  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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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 discharge if such is merited by the Soldier’s overall record.

10.  On 9 May 2008, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

11.  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 contends that his discharge should be upgraded because he made simple mistakes that were not criminal in nature.  He made many achievements and was decorated many times during his brief period of service. He desires to have his discharge upgraded so that he may be able to pursue a career in law enforcement.

2.  The applicant's contentions and submissions have been noted and carefully considered.  However, he was qualified for enlistment, had completed training, and 5 years of active duty service.  He had also been advanced to pay grade E-4 before his behavior became problematic.  Clearly, he had the capacity for honorable service. 

3.  His reported civilian career considerations are not a factor upon which to base an upgrade of the discharge.

4.  The applicant’s discharge processing was accomplished in accordance with applicable law and regulations and the applicant's service was humanely characterized.  His award of two personal decorations and the Army Good Conduct Medal have been considered; however, they do not warrant granting the relief requested.

5.  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 record does not contain any evidence and the applicant failed to submit any evidence that would satisfy this requirement.

6.  In view of the above, there is no basis for granting the applicant's requested relief.

________  ________  ________  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)                                         AR20090006300



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ABCMR Record of Proceedings (cont)                                         AR20090006300



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