BOARD DATE: 5 January 2010
DOCKET NUMBER: AR20090013055
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 under honorable conditions discharge be upgraded to honorable.
2. The applicant states that there was insufficient reasoning and documents warranting a general discharge. He contends that he only received one nonjudicial punishment which is not a pattern of misconduct. He contends that he deserves an honorable discharge. He has been trying to reenter the military but has been denied. This is his last chance to have his discharge reviewed and corrected so that he can be allowed back into the military to honorably defend his country.
3. The applicant provides copies of an Army Engineer Association membership certificate; a certificate of affiliation with the U.S. Army Engineer Regiment; a Combat Engineer training certificate; a DA Form 4187 (Personnel Action) advancing him to private, pay grade E-2; a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 24 February 2003; orders to active duty as a Reservist, dated 6 February 2003; orders attaching him to Fort Campbell, Kentucky, dated 7 March 2003; orders discharging him from the U.S. Army Reserve, dated16 April 2003; and a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's official military personnel file only contains a copy of his enlistment contract. However, there are sufficient documents available to conduct a fair and impartial review of this specific request.
2. The applicant's DD Form 214 shows:
a. that on 10 February 2003 he was ordered to active duty as a Reservist in support of Operation Enduring Freedom and
b. that he had held military occupational specialty 12B (Combat Engineer) for a period of 10 months.
3. A DA Form 2627 provided by the applicant shows:
a. that on 15 February 2003 he willfully disobeyed an order from a noncommissioned officer to go to the firing line with his rifle;
b. that he did not demand trial by court-martial;
c. that he requested a closed hearing and did not present any matters in his defense, mitigation, and/or extenuation; and
d. that both he and the imposing commander signed the form on 24 February 2003.
4. The DA Form 2627 fails to show what, if any, punishment was directed. It also does not show if the applicant appealed the punishment.
5. The discharge packet is missing from the applicant's military records. However, his DD Form 214 shows that he was administratively discharged on 22 April 2003 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, for a pattern of misconduct. His service was characterized as general under honorable conditions. He had completed 2 months and 13 days of creditable active duty.
6. On 25 June 2009, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
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 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.
8. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
9. 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 discharge should be upgraded because he received only one nonjudicial punishment which does not constitute a pattern of misconduct.
2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.
3. The available records do not contain any evidence of the misconduct that led to the applicant's discharge. However, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.
4. 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 the aforementioned 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.
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