IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021408 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states he was discharged for misconduct (serious offense).  He states that he was arrested for driving under the influence (DUI) and did not go to court until after his discharge.  He states that he believes he was wrongfully discharged because he does not have a DUI.

3.  The applicant provides a California Department of Motor Vehicles printout.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 12 March 2003.  He was awarded the military police occupational specialty.  The highest rank/grade he held was specialist/E-4.

2.  The applicant's records show he received a general officer memorandum of reprimand on 9 February 2007.  It states he was reprimanded for driving an automobile while intoxicated.  The reprimand was directed to be filed permanently in his official military personnel file.

3.  Information received from the Texas Department of Public Safety, Killeen, Texas, revealed the applicant was arrested for driving while intoxicated and speeding at 76 miles per hour in a 60-mile per hour zone on 27 January 2007.  The applicant refused to provide either a specimen of his blood or breath for analysis.

4.  The applicant's records show he was charged with the specification of committing an indecent assault upon a person not his wife by offensively touching her leg and initiating removal of her pants with intent to gratify his lust and the specification of unlawfully entering the barracks room of the same Soldier with intent to commit indecent assault therein.  A special court-martial found him not guilty of the charges of committing indecent assault and housebreaking, but guilty of unlawful entry.

5.  A DA Form 4856 (General Counseling Form) contained in the applicant's records shows he received a general counseling to inform him that he was being recommended for discharge due to a pattern of misconduct and a pattern of exercising poor judgment.

6.  On 30 April 2007, the applicant was advised by counsel of the basis for the contemplated action to separate him for commission of a serious offense for being found guilty of unlawful entry and for driving under the influence of alcohol under Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-12c, and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights.  He did not submit a statement in his own behalf.

7.  On 3 May 2007, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c and directed that he be separated with a characterization of service of general under honorable conditions.

8.  Accordingly, the applicant was discharged on 15 May 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct (serious offense) with a general discharge.  He had completed 4 years, 2 months, and 4 days of active military service.

9.  On 24 September 2008, the Army Discharge Review Board denied the applicant's request to upgrade 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 include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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.

12.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that commanding officers have authority to give reprimands either as an administrative measure or as nonjudicial punishment.  It provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued a General Officer Memorandum of Reprimand as an administrative matter, and not as a result of judicial or nonjudicial punishment administered under the Uniform Code of Military Justice (UCMJ).  The applicant failed a Field Sobriety Test and refused a blood alcohol test and breathalyzer test.  Based on those facts, the officer issuing the memorandum of reprimand reasonably believed that the applicant was driving while impaired by alcohol.  This was a valid presumption, whether or not the applicant was later convicted for driving while impaired.

2.  The applicant's records also show he was found guilty of unlawful entry by a court-martial.  Such conduct was certainly not honorable.

3.  Based on the applicant's record of misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

4.  The available evidence confirms the applicant's rights were protected throughout the discharge process.

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)                                         AR20090021408



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ABCMR Record of Proceedings (cont)                                         AR20090021408



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