IN THE CASE OF:	  

		BOARD DATE:	   24 May 2011

		DOCKET NUMBER:  AR20100028049


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 general discharge to an honorable discharge.

2.  The applicant states that he was absent without leave (AWOL) for 48 hours while stationed at Fort Hood, TX.  He states this AWOL period was because he had no transportation, phone, or funds to return to Fort Hood.  He concludes by stating he committed no crime or other violation.

3.  The applicant provides a letter from the Department of Veterans Affairs (VA), dated 30 August 2010, which verifies relevant service information, including his dates of service, rank at time of separation, and his discharge characterization.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army, for a 3-year term, on 17 August 2004.  He completed one station unit training and was awarded military occupational specialty 11B (Infantryman).  

2.  His record shows he received developmental counseling on numerous occasions between 17 March and 10 April 2005, for instances of misconduct, including failure to follow orders, violation of Command policies, assault on a fellow Soldier, and being AWOL.  



3.  His records contain a continuation page of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), indicating he may have received nonjudicial punishment for violating a Command policy and disobeying a lawful order; however, the DA Form 2627 itself is unavailable for review. 

4.  On 9 June 2005, he was notified of the initiation of separation action under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 14, for misconduct – pattern of misconduct.  

5.  On 9 June 2005, he acknowledged he had been advised by his counsel of the basis for the contemplated action to separate him under Army Regulation 635-200, chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He chose to not submit a statement in his own behalf.

6.  The separation authority approved his discharge due to misconduct and directed that he be given a general discharge under honorable conditions.

7.  On 8 July 2005, he was discharged under the provisions of Army Regulation 635-200, chapter 14, with a general discharge under honorable conditions.  His DD Form 214 confirms he completed 10 months and 16 days of creditable active service during this period of active duty.  The highest rank/grade he attained while serving on active duty was private/E2.

8.  On 16 February 2010, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  He provides a letter from the VA, dated 30 August 2010, which verifies relevant service information, including his dates of service, rank at time of separation, and his discharge characterization.  

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, 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his under honorable conditions discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and was advised of the basis for the separation action.

3.  Based on his record of indiscipline, including instances of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20100028049



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