IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011934 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he has been requesting that his discharge be upgraded since 2005 and that he has twice been denied.  He states that he had a personal appearance which was an 8 hour drive from his home and he was denied.  

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

CONSIDERATION OF EVIDENCE:

1.  On 31 January 2002, the applicant enlisted in the Regular Army in Raleigh, North Carolina, for 3 years, in the pay grade of E-2.  He successfully completed his training as a field artillery surveyor.

2.  Nonjudicial punishment (NJP) was imposed against the applicant on 6 October 2003 for making a false official statement on 2 September 2003 with intent to deceive and for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade (suspended to be automatically remitted if not vacated before 5 January 2004), a forfeiture of pay, restriction and extra duty.

3.  On 8 February 2004, NJP was imposed against him for making a false official statement on 22 January 2004 with intent to deceive.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

4.  On 26 April 2004, NJP was imposed against the applicant for failure to go to his appointed place of duty on 1 April 2004.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, and extra duty.

5.  On 20 September 2004, the applicant was notified that charges were pending against him for 21 specifications of stealing currency from another Soldier for a total of approximately $1,059.00.  He acknowledged receipt of the notification and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court martial.

6.  The appropriate authority approved the request for discharge on 1 October 2004 and he directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 22 October 2004, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 8 months, and 22 days of net active service this period.

7.  On 3 June 2005, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB denied his request 8 February 2006.  The applicant requested and was provided a Personal Appearance Hearing before the ADRB on 23 April 2009.  His request for a discharge upgrade was again denied.

8.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  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.  

10.  Paragraph 3-7b of Army Regulation 635-200 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge because he has twice been denied an upgrade.

2.  His contentions have been noted.  However, his contentions are not sufficiently mitigating to warrant the requested relief.

3.  The applicant's records show that he had NJP imposed against him on three separate occasions as a result of his acts of misconduct and he had charges pending against him for 21 specifications of stealing from another Soldier.  The type of discharge that he received was appropriate considering the nature of his offenses.

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)                                         AR20090011934



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ABCMR Record of Proceedings (cont)                                         AR20090011934



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