IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100014088 


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 discharge be voided and that he be reinstated to active duty.

2.  He states, in effect, he was falsely accused and convicted of the commission of a pattern of misconduct.  He was reduced in rank and separated from the Army.  He submitted an appeal and he was granted a discharge upgrade.  He contends the sole purpose of his appeal was to return to active duty as soon as possible.  It has been 5 years and he is still fighting to get back on active duty without results.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 April 1990.  He completed his initial entry training and was awarded military occupational specialty 11B (Infantryman).  He was promoted to the rank of staff sergeant/E-6 on 1 July 2002.

2.  During the period January - April 2003, he received several negative counseling statements for a number of disciplinary issues including negligence in the performance of his duties, failure to support family members, disobeying orders, failure to pay bills, and lying to a senior noncommissioned officer (NCO).



3.  On 3 March 2003, he accepted nonjudicial punishment for three specifications of failing to go to his appointed place of duty at the prescribed time and for disobeying a lawful command from his superior commissioned officer.  The punishment included reduction to the rank of sergeant/E-5.

4.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows he was reduced to the rank of sergeant/E-5 on 
3 March 2003 and to the rank of specialist/E-4 on 2 June 2003.

5.  On 8 May 2003, he was advised by his unit commander that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b for a pattern of misconduct with an other than honorable conditions discharge.  He was informed the reasons for the proposed action were two instances of failing to obey a direct order from a commissioned officer, failure to support family members, dereliction of duty, failing to report to his appointed place of duty a number of times, conduct unbecoming of an NCO, and making false statements to a senior NCO and to a commissioned officer.

6.  On 9 May 2003, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, of the rights available to him, and the effects of any action taken by him in waving his rights.  He acknowledged he understood he was entitled to have his case considered by an administrative separation board because he would have six or more years of total active and Reserve military service on the date of initiation of the recommendation for separation and because he was being considered for a separation under other than honorable conditions.

7.  He acknowledged that he was afforded the opportunity to consult with an attorney and to consider whether or not to submit a conditional waiver.  He then voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than under honorable conditions, otherwise referred to as a general discharge.  He also indicated he made the request on his own free will and he had not been subject to coercion by any person.

8.  The separation authority approved the recommendation and directed that the applicant receive a general discharge.  On 23 June 2003, he was discharged accordingly.  His DD Form 214 shows he was discharged in the rank of specialist/E-4 and he had completed 13 years, 2 months, and 7 days of active service.

9.  On 21 September 2005, the Army Discharge Review Board (ADRB) concluded that his discharge proceedings were administratively incorrect and voted to upgrade his discharge to honorable.  The ADRB based their decision on the fact that the unit commander used "Board Procedures" when notifying him of the separation action and by using "Board Procedures" the authority for approval of his separation action rested with the general court-martial convening authority. Someone other than the general court-martial convening authority approved his discharge and as a result, his discharge was improper.

10.  A review of his Official Military Personnel File indicates he is currently serving in the U.S. Army Reserve in the rank of sergeant/E-5.

11.  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.

12.  Army Regulation 601-280 (Army Retention Program) prescribes criteria for the Army Retention Program and sets forth policies and command responsibilities for immediate reenlistment or extension of enlistment of Soldiers currently serving in the Active Army.  It provides that a Soldier may not exceed designated retention control points (RCP) for his/her rank by more than 29 days before the expiration of contracted service (reenlistment or extension).  The RCP for a specialist is 10 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be voided and he should be reinstated to active duty has been carefully considered.

2.  He was discharged under the provisions of Army Regulation 614-200, chapter 14 for a pattern of misconduct with a general discharge, in the rank of specialist/E-4.  Although the ADRB upgraded his characterization of service based on an administrative error, that action does not warrant voiding his current discharge or returning him to active duty.

3.  Additionally, at the time of discharge, he was a specialist with over 13 years of active service.  Accordingly, he had already exceeded the RCP for his grade by more than 3 years and he was not eligible for reenlistment.

4.  Based on the foregoing, his 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)                                         AR20100014088



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ABCMR Record of Proceedings (cont)                                         AR20100014088



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