IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100009575 


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 under honorable conditions be upgraded to a fully honorable discharge.

2.  He states he is requesting this change in order to make it easier for him to join the Atlanta Police Department.  He also states he feels this change is justified because his record shows his service to the Army, his unit, and the Nation was, in fact, honorable.  He admits he received a number of negative counseling statements for minor infractions and mistakes, but contends his discharge had more to do with personality conflicts than his actual service.

3.  He further states that prior to reporting to Fort Jackson, SC, he served as a highly decorated member of the Army's Public Affairs Corps.  By the time he was promoted to the rank/pay grade of private first class/E-3, he had earned two Army Achievement Medals and an Army Commendation Medal in addition to some awards which are unique to the journalism field.  He also attests he was being actively pursued for recruitment into both the Special Forces and the U.S. Military Academy by members of those communities with whom he had worked.

4.  He attributes his downfall to a personality conflict between him and his immediate supervisor.  He contends the supervisor intentionally created a file of misconduct for numerous relatively minor infractions in an effort to justify adverse action against him under Article the Uniform Code of Military Justice (UCMJ) and his eventual discharge.

5.  He also states that in addition to dealing with the stress of this constant scrutiny and punishment, he was heavily affected by the events of 11 September 2001; however, he was never offered any mental counseling.  In order to cope, he began drinking alcohol and states that he voluntarily enrolled in an Alcoholics Anonymous program on post prior to his discharge.  He attests that his supervisor never attempted to find productive ways to help him, nor was he supportive of his attempts to find help on his own.  He concludes that had he been older and more mature, he is sure things would have turned out differently.
He acknowledges his mistakes, but does not believe his service to the Army and our Nation was anything less than honorable.

6.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  His record shows he was born on 27 December 1981.  He enlisted in the Regular Army on 4 August 1999 at the age of 17 years, 7 months, and 9 days.  
Upon completion of initial entry training, he was awarded military occupational specialty 46Q (Journalist).  The highest rank/pay grade he attained while serving on active duty was private first class/E-3.  However, at the time of his separation he held the rank/pay grade of private/E-2.

3.  His DD Form 214 shows he was awarded or authorized the:

* Army Commendation Medal
* Army Achievement Medal with 1st oak leaf cluster
* Army Service Ribbon
* Overseas Service Ribbon

4.  His record reveals a disciplinary history that includes numerous adverse counseling statements for matters such as:

* several instances of poor duty performance
* failing to report to his appointed place of duty at the prescribed time on numerous occasions
* violating a noise ordinance
* wearing an improper uniform
* failing to maintain a military appearance
* poor time management
* failure to respond to corrective training

5.  His record also reveals his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on one occasion for violating Article 86 by failing to report to his appointed place of duty at the prescribed time.

6.  On 11 December 2001, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The commander cited the applicant's disciplinary history as the basis for this action.  The unit commander also informed the applicant that he could receive a general, under honorable conditions discharge and be issued a General Discharge Certificate.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date

7.  On 19 December 2001, his unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The unit commander cited his disciplinary history, failure to respond to counseling, and inability to conform to acceptable standards of Soldiering as the basis for this action.

8.  Having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  He was also informed that if he was issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  He submitted a statement in his own behalf, wherein he expressed his sentiment that he was being treated unfairly due to a personality conflict between him and his supervisor.

9.  On 8 January 2002, his battalion commander recommended approval of his separation, but also that the separation be suspended for 6 months in order to afford him an opportunity to rehabilitate in his current environment.  On 9 January 2002, the separation authority approved the battalion commander's request and directed the applicant's discharge under the provisions of Army Regulation 
635-200, chapter 13, paragraph 13-2, and issuance of a General Discharge Certificate be suspended for a period of 6 months.

10.  On 11 February 2002, the separation authority informed him that he was considering vacating the 6 month suspension of his discharge due to the fact he had another act of misconduct and afforded him an opportunity to consult with counsel and or submit a written statement in his own behalf.  He acknowledged receipt of this notification on the same date.

11.  After considering his appeal, the separation authority vacated the suspension and directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, and issuance of a General Discharge Certificate.

12.  On 12 March 2002, he was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 issued to him at the time shows that he received an "Under Honorable Conditions" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of Army Regulation 635-200, chapter 13.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JHJ."  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."

13.  On 14 February 2003, the President of the Army Discharge Review Board (ADRB) informed the applicant that after careful consideration of his military records and all other available evidence, the ADRB had determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general, under honorable conditions discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  His record shows he was nearly 18 years of age at the time of his enlistment and 20 years of age at the time of his offenses.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  The record shows he had multiple disciplinary infractions.  In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve.  Evidence clearly shows he was not responsive to the rehabilitative efforts of his command.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general, under honorable conditions discharge to an honorable discharge.

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)                                         AR20100009575





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ABCMR Record of Proceedings (cont)                                         AR20100009575



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