BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090019050 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he had endured a very harsh deployment and he wasn't enrolled in a rehabilitation program like many other Soldiers.  He states his staff sergeant had recommended him for a program but he was denied.  He stated he enrolled in the Alcohol and Substance Abuse Program (ASAP) but the psychiatrist just laughed at him.  He states his previous service was not considered.  He states he did not have a pattern of misconduct prior to reporting to A Company, 121st Brigade Support Battalion (BSB).  He states he had orders to Fort Richardson in Alaska, but he wasn't allowed to transfer and the orders were revoked.  He states with a general discharge he is unable to continue in school and has difficulty in obtaining employment.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 27 August 2003 for 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) of 31R (Multichannel Transmission Systems Operator-Maintainer).

2.  On 13 October 2005, the applicant reenlisted for 6 years under the Army Training Reenlistment Option for the MOS of 92W (Water Treatment Specialist).
3.  While assigned to C Company, 327th Signal Battalion (Airborne) the applicant received two Army Achievement Medals for the periods 18 May 2004 to            26 February 2006 and 29 November 2004 to 28 November 2005.  He was awarded his first Army Good Conduct Medal for the period 10 September 2003 to 9 September 2006.  He was also awarded the Army Commendation Medal.

4.  The applicant served in Kuwait/Iraq during the periods 1 November 2004 to 15 November 2005 and 28 October 2006 to 8 December 2007.

5.  While assigned to A Company, 27th BSB at Forward Operating Base (FOB) Marez, Iraq, on 25 October 2007, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for missing movement through design and negligently discharging an M249 Squad Automatic Weapon in a Containerized Housing Unit.

6.  The applicant received formal counseling on:

* 20 February 2008 by his squad leader for failure to report to accountability formation at 0630 hours
* 21 February 2008 by his first sergeant for failing to be at his appointed place of duty

During both formal counseling sessions the applicant was advised that continued misconduct could be cause for action to separate him from the service.  He was also advised that such a separation could result in a less than honorable discharge and as a result he may be disqualified for future veteran's benefits and benefits under State and Federal laws.

7.  The date the applicant was assigned to A Company, 121st BSB is not known.

8.  On 28 February 2008, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

9.  On 29 April 2008, the applicant's commander notified him he was initiating action under the provisions of Chapter 14 of Army Regulation 635-200 to separate the applicant from the Army due to his pattern of misconduct.  The commander stated his reasons for the action were his having received NJP and his failure to be at accountability formations on two occasions.  The commander stated he was recommending he receive a general discharge under honorable conditions.

10.  The commander advised the applicant of his right to:

* consult with consulting counsel
* submit written statements in his own behalf
* obtain copies of documents that would be sent to the separation authority

11.  The commander further advised the applicant that he may waive any of these rights in writing and he could withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander advised the applicant that failure to respond to the letter of notification constituted a waiver of his rights.  

12.  On 29 April 2008, the applicant acknowledged receipt of the notification of recommendation for separation.  He also certified he received a copy of all documents being forwarded to the separation authority for consideration.  His election or waiver of his rights was not available for review.

13.  A memorandum, dated 29 April 2008, from the applicant's defense counsel stated the applicant did not qualify for separation under Chapter 14 of Army Regulation 635-200.  Defense counsel requested a rehabilitation transfer instead of separation.  Counsel states Chapter 14 states commanders are to ensure adequate counseling and rehabilitative measures are taken before initiating separation for a pattern of misconduct.  Counsel states the applicant was being considered for separation based on one NJP and two failures to repair that occurred over 2 months ago.  Since that time the applicant had been on time for every unit formation, demonstrating the high rehabilitative potential of the combat veteran.

14.  On 9 May 2008, the applicant's commander submitted a recommendation that he be discharged due to a pattern of misconduct and waiver of further rehabilitative efforts.  The commander stated he was making this recommendation based on the applicant having received NJP and his failure to be at accountability formations on two occasions.  The commander stated the applicant had lost all ability and potential to be of useful service to the team, mission, and unit.  The commanders also stated the applicant's potential for further service had been significantly degraded and he no longer showed a desire to uphold the Army values.


15.  The applicant's first sergeant submitted a Memorandum for the Record, dated 15 May 2008.  The first sergeant stated he had observed the applicant's pattern of misconduct on multiple occasions.  The first sergeant stated there had been three attempts to transfer the applicant for rehabilitative reasons and he had been moved five times to avoid receiving nonjudicial punishment.  He states attempts to change the applicant's behavior were to no avail.  

16.  The applicant's intermediate commander recommended he be separated under the provisions of Chapter 14 of Army Regulation 635-200 and receive a general discharge under honorable conditions.  The commander also recommended that a waiver of further rehabilitative efforts be granted.

17.  On 2 June 2008, the appropriate authority directed the immediate separation of the applicant under the provisions of Chapter 14 of Army Regulation 635-200 and that he receive a general discharge under honorable conditions.  Waiver of further rehabilitative efforts was approved.

18.  On 11 June 2008, the applicant was discharged under the provisions of Chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  He had completed 4 years, 9 months, and 15 days of active service that was characterized as under honorable conditions.

19.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 29 May 2009, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, establishes policy and prescribed procedures for separating members for misconduct.  Paragraph 14-12b provides for the separation of a Soldier due to a pattern of misconduct.  A discharge under other than honorable conditions is normally appropriate for a Solder discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

21.  Paragraph 1-16 of Army Regulation 635-200 states when a Soldier's conduct or performance becomes unacceptable, the command will ensure that a responsible official formally notifies the Soldier of his deficiencies.  At least one formal counseling session is required before separation proceedings may be initiated.  The number and frequency of formal counseling sessions are discretionary.
22.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge.  He contends he received little support from his command and his previous honorable service was not considered.  He contends that because of his general discharge he is unable to continue to go to school and he has difficulty in obtaining employment.

2.  The applicant has not submitted any evidence to substantiate his contention that his command did not support him or that his orders to Fort Richardson were revoked.  Evidence of orders assigning him to Fort Richardson were not available for review.  

3.  The regulation states at least one formal counseling session is required before separation proceedings may be initiated.  However, the regulation also states the number and frequency of formal counseling sessions are discretionary. The applicant was formally counseled on two occasions, one of which was by his first sergeant.  He was advised in both counseling sessions of the consequences of any further misconduct.

4.  The applicant's first sergeant stated there had been three attempts at a rehabilitative transfer of the applicant and he had been moved five times to avoid disciplinary actions.  Therefore, the request by the applicant's commander and intermediate commander for waiver of further rehabilitative efforts and subsequent approval by the separation authority were appropriate. 

5.  The applicant's previous service included one Army Commendation Medal, two Army Achievement Medals, an Army Good Conduct Medal, and two tours in Iraq.  The applicant's commander, intermediate commander, and the separation authority clearly considered this service as he was recommended for and received a general discharge under honorable conditions where an under other than honorable discharge is normally considered appropriate.

 

6.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

7.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits or for improving opportunities for employment.  The granting of veterans benefits is not within the purview of the ABCMR and any questions regarding eligibility for these benefits should be addressed to the Department of Veterans Affairs (VA).

8.  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 that requirement.

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)                                         AR20090019050





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019050



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1