IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090020266 


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 narrative reason for separation be changed to a more favorable reason that will allow him to reenter military service.

2.  The applicant states that he believes his discharge was unjust because he requested to be discharged.  He goes on to state that while serving his country he assumed responsibility for his family members when they acted out of line, which was the main reason for his discharge.  He also states that he served his country with numerous tours overseas and he never had issues of misconduct.  He conducted himself as a noncommissioned officer (NCO) and his evaluation reports reveal so.  He continues by stating that the characterization of his service has been upgraded and he desires the narrative reason to be upgraded so that he can reenter the service.

3.  The applicant provides a third-party letter of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 January 1997 for a period of 3 years.  He completed his training and remained on active duty.  He reenlisted on 11 March 1999 for a period of 3 years and he continued to serve as an ammunition specialist.  On 16 March 2001, he reenlisted for a period of 4 years and a selective reenlistment bonus.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 26 April 2002.

2.  On 10 August 2004, nonjudicial punishment (NJP) was imposed against the applicant for three specifications of sexually harassing two subordinate female Soldiers in Iraq, for making a false official statement, and for unlawfully entering a container room with the intent to commit an assault.  His punishment consisted of a reduction to specialist (SPC)/E-4, forfeiture of $500.00 pay per month for two months, and extra duty and restriction for 45 days.  He did not appeal the punishment.

3.  On 10 May 2005, NJP was imposed against the applicant for making a false official statement.  His punishment consisted of a reduction to private (PV1)/E-1, forfeiture of $667.00 pay per month for two months, and extra duty and restriction for 45 days.  He appealed the punishment on and on 24 May his appeal was denied.  He acknowledged the action taken on his appeal on 25 May 2005.

4.  On 8 June 2005, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14, for misconduct due to commission of a serious offense.  He cited as the reason for his recommendation that the applicant had received two field grade punishments, one in Iraq and one in Germany.  He was charged with sexually harassing two Soldiers, two counts of providing false official statements, assault, unlawful entry with intent to commit a criminal offense, and adultery.  He was also counseled for his lack of military bearing, a domestic disturbance involving him and his wife, and various other acts of misconduct.

5.  On 9 June 2005, after consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive consideration of his case by an administrative separation board contingent upon his receiving a characterization of service no less favorable than general under honorable conditions.

6.  The appropriate authority (a major general) accepted his request for a conditional waiver and approved the recommendation for discharge on 15 July 2005.  He directed that the applicant be furnished a General Discharge Certificate.

7.  Accordingly, on 30 July 2005, he was discharged with a general under honorable conditions discharge under the provisions of Army Regulation
635-200, paragraph 14-12c, for misconduct.  He had served 8 years, 6 months, and 17 days of total active service.


8.  The applicant applied to the Army Discharge Review Board (ADRB) on
1 September 2006 for an upgrade of his discharge and change to his narrative reason for separation.  On 26 September 2007, the ADRB carefully considered the applicant's case.  Although the ADRB did not condone the applicant's misconduct, the board unanimously voted to upgrade his discharge to fully honorable based on the discharge approving authority's improper use of NJP from a prior period of honorable service in characterizing his discharge.  However, the ADRB determined that the reason for his discharge was both proper and equitable and voted not to change it.

9.  Army Regulation 635-200 (Personnel Separations) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Notwithstanding the action of the ADRB, his general under honorable conditions discharge at the time appropriately characterized his service during the period in question.

3.  The applicant was discharged for misconduct and he has failed to show through the evidence submitted with his application and the evidence of record that the reason for his discharge was either unjust or in error.  Therefore, in the absence of such evidence, there appears to be no basis to change his narrative reason for separation.

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 this 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)                                         AR20090020266



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ABCMR Record of Proceedings (cont)                                         AR20090020266



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