IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028421


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 (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states he made mistakes in his youth.  He asks for a discharge upgrade in order to honor himself and his country within the career field of emergency and disaster management.  He is a student at American Military University in West Virginia with a 3.8 grade point average.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 30 June 1973.  He enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years on 27 December 1990.  On 20 August 1991, he was discharged from the DEP and he enlisted in the Regular Army for 3 years on 21 August 1991.  He was 18 years of age.

2.  The applicant completed initial entry training at Fort Knox, KY, and was awarded military occupational specialty 19D (Cavalry Scout).  In January 1992, he was transferred to Germany for duty with Troop A, 3rd Squadron, 4th Cavalry.

3.  On 8 October 1993, the applicant was tried by a summary court-martial (SCM) at Conn Barracks, Schweinfurt, Germany.  A summary of the offenses, pleas, and findings are:
Charge
Article, UCMJ
Specification
Offense(s)
Plea
Finding
I
92
1
willful dereliction of duty on 21 August 1993
not guilty
guilty


2
willful dereliction of duty on 22 August 1993
not guilty
guilty
II
107
1
false official statement on 22 August 1993
guilty
guilty


2
false official statement on 22 August 1993
guilty
guilty


3
false official statement on 22 August 1993
guilty
guilty


4
false official statement on 22 August 1993
guilty
guilty
III
128

assault consummated by battery on 2 September 1993
not guilty
guilty
IV
134

negligently discharging a firearm on 22 August 1993
guilty
guilty
4.  Upon conviction, the applicant was sentenced to reduction from the rank of private/E-2 to private/E-1, forfeiture of $543.00 pay per month for 1 month, and confinement for 30 days.  He was confined at the U.S. Army Confinement Facility, Mannheim, Germany.

5.  On 21 December 1993, the applicant's troop commander recommended the applicant be discharged for misconduct – commission of a serious offense –under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14.  The applicant acknowledged receipt of notification on the same date.  He consulted with and retained legal counsel who advised him of his rights.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued a discharge under other than honorable conditions and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He elected to submit a statement in his own behalf.

6.  In his statement, dated 3 January 1994, the applicant said:

* he had served 2.5 years
* he experienced some problems and was convicted by an SCM
* spending 30 days in confinement opened his eyes
* he had personal problems due to deaths in his family
* he was sorry and asked for a second chance

7.  The administrative separation was forwarded to the squadron commander who endorsed it and also recommended a GD.  It was then forwarded to the brigade commander for approval.  On 13 January 1994, the brigade commander approved the applicant's discharge and directed that he be issued a GD.

8.  The applicant was transferred to the United States and discharged at Fort Dix, NJ, accordingly on 10 February 1994.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  After considering his case, the ADRB denied his request on 5 September 2008.

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 the regulation.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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 requests a discharge upgrade from GD to HD.

2.  The applicant was derelict in the performance of his duties, he negligently discharged a firearm, he committed an assault and battery, and he made false official statements.  The quality of his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and it was not sufficiently meritorious to merit an HD.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The GD he received was more than appropriate considering all the facts of the case.

4.  The applicant's post-service educational accomplishments are acknowledged; however, this fact alone does not warrant the relief requested.

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)                                         AR20100028421



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ABCMR Record of Proceedings (cont)                                         AR20100028421



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