BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20100000363 


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 under honorable conditions discharge be changed to honorable.

2.  The applicant states he was 18 years old, married, and several men in his company slept with his wife, to include his squad leader.  He did the best he knew how under the circumstances.  He is 41 years old now and to have his discharge upgraded would be a blessing.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) effective 3 February 1988.

CONSIDERATION OF EVIDENCE:

1.  On 2 June 1986, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 31V (Unit Level Communications Maintainer).

2.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on three separate occasions as follows:

	a.  on or about 20 May 1987, was derelict in the performance of his duties as "guard," in that he negligently failed to remain awake during his tour of duty and, on or about 26 May 1987, failed to go at the time prescribed to his appointed place of duty without authority, to wit:  Headquarters and Headquarters Company (HHC) formation.  The punishment included reduction to pay grade E-1 and 14 days of restriction and extra duty.

	b.  on or about 4 August 1987, falsely pretended to use the DD Form 714 (Meal Card) belonging to another member of the U.S. Army with intent to defraud, then knowing that the pretense was false, and by means thereof did wrongfully obtain from the 1st Brigade Dining Facility, Schofield Barracks, Hawaii, services of a value of about $.75, to wit:  breakfast.  The punishment for the offense was 7 days of confinement and forfeiture of 7 days pay.

	c.  on or about 7 December 1987, failed to go at the time prescribed to his appointed place of duty without authority, to wit:  physical training formation in front of HHC, 3rd Battalion, 21st Infantry at 0630 hours.  The punishment for the offense was forfeiture of $153.00 pay (suspended) and 14 days of restriction and extra duty.

3.  As a result of alleged spouse abuse, the applicant was mandated in accordance with Army Regulation 608-18 (Army Family Advocacy Program) to have a mental health evaluation and treatment recommendations.  On 14 December 1987, the Community Mental Health Services notified the applicant's commander of his failure to keep scheduled appointments.

4.  After a rehabilitative transfer failed to produce a change in the applicant's attitude the commander requested a waiver for rehabilitation transfer stating, "any other rehabilitation efforts would not be in the best interest of the Army."  On 15 January 1988, a request for a waiver for rehabilitation transfer of the applicant was approved.

5.  On 19 January 1988, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 
635-200 (Personnel Separations – Enlisted Separations), chapter 14, for a pattern of misconduct, citing the previous UCMJ offenses of falling asleep on guard duty, missing formation, attempting to use another member's meal card, and failing to go to his appointed place of duty.

6.  The applicant acknowledged receipt of the proposed separation action, consulted with counsel, and waived his attendant rights on 21 January 1988.

7.  On 22 January 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct and directed that the applicant receive a General Discharge Certificate.
8.  On 3 February 1988, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he held the rank of private/E-1 and had completed 1 year, 8 months, and 2 days of active military service.  The DD Form 214 also shows that his character of service was general under honorable conditions; the separation authority was Army Regulation 635-200, paragraph 14-12b; and the narrative reason for his separation was a pattern of misconduct.

9.  The applicant applied on 16 June 1996 to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 7 March 1996, the ADRB denied his request.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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, conviction by civil authorities, desertion, or absences without leave.  Paragraph 14-12b specifically provides for separation as a result of a pattern of misconduct.  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 considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general under honorable conditions discharge should be upgraded to an honorable discharge because he was young and unable to properly handle a situation in which his spouse slept with several of the men in his company to include his squad leader.

2.  The applicant's records show he was punished three times under Article 15, UCMJ.  He further compounded his misconduct by failing to attend mandated counseling or changing his behavior after a rehabilitative transfer.  In view of the circumstances in this case, the type of discharge he received properly characterizes his overall record of service and therefore he is not entitled to an upgrade of his discharge.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The available records contain no evidence of procedural or other errors that would have jeopardized his rights.

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.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20100000363



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000363



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1