IN THE CASE OF:	  

		BOARD DATE:	       15 September 2009

		DOCKET NUMBER:  AR20090007669 


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 discharge under honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states that his general discharge is denying him all of the benefits he needs.  He paid into the Montgomery GI Bill (MGIB) Program and cannot use it.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 6 August 2002, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 42L (Administrative Specialist).

2.  On 26 April 2003, the applicant deployed in support of Operation Iraqi Freedom.  He was assigned to Headquarters and Headquarters Troop, 2nd Squadron, 2nd Armored Cavalry Regiment.

3.  On 16 January 2004, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty on five different occasions in Iraq.  The punishment included reduction to pay grade E-2, a forfeiture of $301.00 pay per month for 1 month and extra duty for 7 days.
4.  On or about 4 April 2004, the applicant returned to the United States for duty at Fort Polk, Louisiana. 
5.  On 6 October 2004, the applicant accepted NJP for failure to go to his appointed place of duty on seven different occasions at Fort Polk.  The punishment included reduction to pay grade E-1, a forfeiture of $596.00 pay per month for 1 month (suspended) and extra duty and restriction for 45 days.

6.  On 1 December 2004, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for a pattern of misconduct.  The commander cited the applicant's two NJP's and numerous counseling sessions for failure to go to his appointed place of duty. 

7.  On 1 December 2004, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board providing that he received no less than a general discharge.  

8.  The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

9.  Accordingly, on 29 December 2004, the applicant was discharged under honorable conditions.  He had completed 2 years, 4 months and 24 days of creditable active service.

10.  On 6 June 2008, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  After a careful examination of the applicant's record of service, the ADRB determined that the discharge was both proper and equitable.

11.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

12.  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.
13.  MGIB Program eligibility for Soldiers separated after 30 June 1985 requires completion of 3 years of active duty service and a fully honorable characterization of service. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded so that he can obtain his MGIB benefits.

2.  The available evidence shows the applicant was counseled on numerous occasions and he received two NJP's, all for failure to go to his appointed place of duty.  Clearly, this is a pattern of misconduct. 

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant's desire to obtain MGIB benefits is not justification for an upgrade of an individual's discharge.  It is also noted that the applicant did not complete the minimum amount of active duty service to qualify for MGIB benefits.

6.  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.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20090007669



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ABCMR Record of Proceedings (cont)                                         AR20090007669



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