IN THE CASE OF:	  

		BOARD DATE:	        29 October 2009 

		DOCKET NUMBER:  AR20090009990 


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, under honorable conditions to fully honorable.

2.  The applicant states that he would like his discharge upgraded so he may be able to get a job, pay his bills, take care of his brother and sister, and avoid becoming a homeless person.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 May 2008, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve on 31 July 2007.  He was subsequently ordered to active duty for training on 21 August 2007, completed basic combat training, and was reassigned to Fort Eustis, VA, for completion of advanced individual training.

2.  On 27 March 2008, the applicant was detained by the Fort Eustis military police for assault and indecent exposure.  

3.  On 25 April 2008, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for illegally and unlawfully engaging in sexual contact with another Soldier by grabbing his buttocks on or about 22 March 2008; illegally and unlawfully engaging in sexual contact with another Soldier by mounting on top of him and making humping gestures with his groin on or about 22 March 2008; willfully and wrongfully exposing himself in an indecent manner to public view on or about 27 March 2008; failing to go at the time prescribed to his appointed place of duty on or about 5 March 2008; disobeying a lawful order on or about 15 January 2008; and communicating a threat against another Soldier on or about 27 March 2008.  His punishment consisted of a forfeiture of $674.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

4.  On or about 1 May 2008, 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 disobeying an order, making sexual contact, communicating a threat, and indecent exposure.

5.  On 1 May 2008, the applicant acknowledged receipt of the separation memorandum and subsequently 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 elected not to submit a statement in his own behalf.

6.  On 1 May 2008, 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.

7.  On 2 May 2008, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an under honorable conditions (general) character of service. 

8.  On 7 May 2008, 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 9 May 2008, the applicant was accordingly discharged. The DD Form 214 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 8 months and 19 days of creditable active military service. 

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

10.  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.

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, 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 the applicant displayed a pattern of misconduct as evidenced by his nonjudicial punishment 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.  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

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20090009990



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ABCMR Record of Proceedings (cont)                                         AR20090009990



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