IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100016177 


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 an upgrade of his discharge under other than honorable conditions to honorable.

2.  The applicant states that an upgrade of his discharge will make his life easier because he needs an honorable discharge to qualify for government educational benefits.  He contends the Board should upgrade his discharge so he can use his G.I. Bill benefits to attend school and it will satisfy his 4-year old child if he is in school.

3.  The applicant provides a copy of his resumé showing his military service from 2 February 2000 to 28 August 2002 and three short periods of employment in three civilian positions between 10 October 2002 and 17 September 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for a period of 4 years on 4 February 2000.  Upon completion of training he was awarded military occupational specialty 71L (Administrative Specialist).  The highest rank he attained was specialist/E-4.

2.  On 7 December 2000, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for stealing two disposable lighters of a value of about $1.95, the property of the Army and Air Force Exchange Service, on 19 November 2000.  His punishment consisted of a reduction to private/E-1, forfeiture of $234.00 pay (suspended for 30 days), 14 days of extra duty, and 14 days of restriction.

3.  On 16 November 2001, the applicant received NJP under Article 15, UCMJ, for leaving his appointed place of duty without authority, being derelict in the performance of his duties by failing to secure his weapon, and making an official statement which was false with intent to deceive his first sergeant on 29 October 2001.  His punishment consisted of correctional custody for a period of 30 days.

4.  On 7 June 2002, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty without authority, disobeying a lawful order from a noncommissioned officer (NCO), being disrespectful in language and deportment toward an NCO who was in the execution of his office, and making an official statement to an NCO which was false with intent to deceive on 13 May 2002.  His punishment consisted of reduction to private first class/E-3, forfeiture of $323.00 pay (suspended for 180 days), and 14 days of extra duty (suspended for 180 days).

5.  On 8 July 2002, the applicant received NJP under Article 15, UCMJ, for wrongfully using marijuana between 3 May 2002 and 3 June 2002.  His punishment consisted of reduction to private/E-1, forfeiture of $552.00 pay for 2 months, 45 days of extra duty, and 45 days of restriction (suspended until 29 December 2002).

6.  On 10 July 2002, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  The reasons for his proposed action were that the applicant received NJP on four separate occasions (7 December 2000, 16 November 2001, 7 June 2002, and 8 July 2002, as outlined above).  The applicant was advised of his rights and of the separation procedures involved.

7.  On 15 July 2002, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

	a.  He acknowledged that military legal counsel for consultation was available to assist him.

	b.  He unconditionally waived his right to have his case heard by an administrative separation board, to present matters in person and through counsel to the board, and to personally appear before an administrative separation board.

	c.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

	d.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable he could make application to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge.  However, an act of consideration by either board did not imply that his discharge would be upgraded.

	e.  He elected not to submit a statement in his own behalf and he placed his signature on the document.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action and that the applicant receive an under other than honorable conditions discharge.

9.  On 7 August 2002, the separation authority approved the separation action and directed that the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct with a character of service of under other than honorable conditions.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 28 August 2002 under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct with service characterized as under other than honorable conditions.  He completed 2 years, 6 months, and 25 days of net active service.

11.  The applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  On 9 September 2009 after careful consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense (one for which a punitive discharge is warranted and authorized), and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  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.

	c.  Paragraph 7b provides that an under honorable conditions is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge to allow him to qualify for government educational benefits and improve his life.

2.  The evidence of record shows the applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate and equitable.

3.  The applicant's military service records were thoroughly reviewed and carefully considered.  The evidence of record shows the applicant attained the rank of specialist/E-4.  However, the evidence also shows he received NJP on four occasions during the period of service under review and he was reduced to private/E-1 just prior to his discharge.

4.  In view of the foregoing, it is concluded that the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and, therefore, he is not entitled to a general 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 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)                                         AR20100016177



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ABCMR Record of Proceedings (cont)                                         AR20100016177



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