BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009569 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that as a result of being furnished a general discharge due to misconduct, he is hindered in progressing in society.  He states that if he can get the character of his service upgraded to honorable, he believes that it will offset the negative attention and response to his characterization of service.  He further states the he currently went back to school to pursue a degree in criminal justice in hopes of becoming a police officer one day to make a better life for his son.

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

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.  On 27 July 1999, the applicant enlisted in the Regular Army (RA) in Columbia, SC, for 4 years, in the pay rank/grade of private (PV1)/E-1.  He successfully completed his training as a health care specialist.  On 10 April 2001, he extended his enlistment for 1 year and 1 month.  On 28 August 2003, he reenlisted in the Army for an additional 3 years.  He was promoted through the ranks to the rank/grade of sergeant (SGT)/E-5.

3.  On 12 May 2004, nonjudicial punishment (NJP) was imposed against the applicant for failure to obey a lawful order not to speak to another Soldier who was being investigated for a possible sexual assault charge; being negligent in the performance of his duty by failing to notify a nurse of a victim reporting a possible sexual assault; and wrongfully endeavoring to impede an investigation by calling the accused and telling him of the victim's attempt to report a sexual assault.  His punishment consisted of a reduction to the rank/grade of specialist (SPC)/E-4, a forfeiture of pay in the amount of $907.00 for one month, and
30 days of extra duty.

4.  The applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14-12c, for misconduct, commission of a serious offense.  His commanding officer cited wrongful obstruction of justice, disobeying an order from a commissioned officer, and dereliction in the performance of his duties as a basis for the recommendation.  The applicant, after consulting with counsel, acknowledged receipt of notification on 6 July 2004, and he submitted a statement in his own behalf requesting that he be retained in the Army with a rehabilitative transfer so that he could move past his mistake.  He stated that he had learned his lesson; however, he had no desire to be retained in the Army unless he was allowed a permanent change of station.

5.  The appropriate authority approved the recommendation for discharge on 12 July 2004 and he directed the issuance of a general, under honorable conditions discharge.  Accordingly on 30 July 2004, the applicant was discharged with a general, under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct, commission of a serious offense.  He had completed 5 years and 4 days of net active service this period and he was furnished a General Discharge Certificate.

6.  On 3 January 2005, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable.  The ADRB determined that his discharge was proper and his application was denied on 2 November 2005.

7.  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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

8.  Paragraph 3-7a of Army Regulation 635-200 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 general discharge should be upgraded to fully honorable.

2.  His contentions have been noted.  However, the applicant was discharged for misconduct, commission of a serious offense and it appears that the character of his service is not too harsh.

3.  The applicant had NJP imposed against him for failure to obey a lawful not to speak to another Soldier who was being investigated for a possible sexual assault charge; being negligent in the performance of his duty by failing to notify a nurse of a victim reporting a possible sexual assault; and wrongfully endeavor to impede an investigation by calling the accused and telling him of the victim's attempt to report a sexual assault.  In accordance with the applicable regulation, a discharge under other than honorable conditions is normally considered appropriate.  His contention that his progress in society is being hindered is not a sufficient justification for granting the requested relief.
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 has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090009569



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ABCMR Record of Proceedings (cont)                                         AR20090009569



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