IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100028670 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) - show his rank/grade as a private (PV2)/E-2 instead of private (PVT)/E-1
* Item 24 (Character of Service) - show the character of service as "honorable" instead of "under honorable conditions (general)"
* Item 25 (Separation Authority) - to show "AR (Army Regulation) 635-200, paragraph 14-12b" instead of "AR 635-200, paragraph 14-12c" 

2.  The applicant states his DD Form 214 shows an incorrect rank/grade as well as the authority for his discharge.  Additionally, his discharge was inequitable because it was based on isolated incidents stemming from issues with his former spouse after deployment.  His medical records show he sought treatment but he received no further help.

3.  The applicant provides:

* Notification of separation memorandum
* DD Form 2808 (Report of Medical Examination)
* Leave and Earnings Statement
* Enlisted Record Brief



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 19 July 2005 and held military occupational specialty 88M (Motor Transport Operator).  He was promoted through the ranks to private first class (PFC)/E-3 on 19 July 2006 and served in Kuwait/Iraq from 12 August 2006 to 5 November 2007.

2.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 10 November 2006, for unlawfully striking another Soldier in the face, discreditable conduct, and wrongfully communicating a threat to injure another Soldier.  His punishment consisted of a reduction to PV2/E-2 (suspended until 19 May 2007), a forfeiture of $333.00 pay (suspended until 19 May 2007), 14 days of extra duty and restriction, and an oral reprimand. 

	b.  On 17 January 2007, for being disrespectful toward a superior noncommissioned officer (NCO).  His punishment consisted of an oral reprimand.

	c.  On 12 April 2007, for unlawfully striking another Soldier on his back with his fists and repeatedly kicking him in the ribs with his feet.  His punishment consisted of a reduction to PVT/E-1, forfeiture of $700.00 pay, 45 days of extra duty and restriction (15 days of which were suspended), and an oral reprimand.

3.  His Enlisted Record Brief shows he was promoted back to PV2/E-2 on 1 September 2007.

4.  On 29 November 2007, at Fort Drum, NY, he was convicted by a summary court-martial of:

* one specification of assaulting an NCO
* one specification of disobeying a lawful order
* one specification of being disrespectful toward an NCO

The court sentenced him to a reduction to PVT/E-1, a forfeiture of 2/3 pay for one month, and hard labor without confinement for 45 days.  The sentence was approved by the convening authority on the same date.

5.  On 30 January 2008, also at Fort Dum, NY, he was again convicted by a summary court-martial of 

* one specification of leaving his place of duty without authority
* one specification of willfully damaging military property
* one specification of resisting apprehension by a DOD policeman
* one specification of assaulting a DOD policeman 

The court sentenced him to confinement for 30 days and a written reprimand.  The sentence was approved by the convening authority on the same date

6.  On 28 February 2008, he underwent a mental status evaluation at Fort Drum, NY.  The military mental health specialist diagnosed the applicant with an adjustment disorder with disturbance of emotions and conduct but found no evidence of cognitive impairment or a personality disorder.  From a psychiatric perspective, the applicant was fit for duty and commanded full capacity.  He was psychiatrically cleared for any administrative action deemed appropriate by his chain of command. 

7.  On 4 March 2008, he underwent a physical examination also at Fort Drum, NY.  He indicated that he was depressed due to problems with his former spouse.  The military physician found him medically qualified for service.

8.  On 1 April 2008, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for misconduct – commission of a serious offense.  

9.  On 15 May 2008, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He conditionally waived his right to appear before an administrative separation board contingent upon receiving a character of service no worse than general (under honorable conditions).  He also elected not to submit a statement in his own behalf but did so anyways.  In his statement, the applicant recounted the various incidents that occurred and justified his actions by assigning blame to his former spouse, chain of command, circumstances, and others.

10.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

11.  Subsequent to the applicant's acknowledgement of this notification, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.

12.  On 17 and 18 March 2008, his intermediate and senior commanders recommended approval of the discharge action with the issuance of a general discharge.  The intermediate commander noted that the applicant had multiple disciplinary problems including two summary courts-martial for violent offenses against fellow Soldiers and blatant disregard to military authority.  

13.  On 20 May 2008, the separation authority approved the applicant's discharge and ordered him discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense with a general under honorable conditions discharge.  On 30 May 2008, the applicant was accordingly discharged.

14.  His DD Form 214 shows he was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further shows he completed 2 years, 10 months, and 12 days of creditable active service.  It also shows in:

* Items 4a, 4b, and 12h (Effective Date of Pay Grade) - "PVT," "E-1," and "2007  09  01"
*  Item 24 - "under honorable conditions (general)"
* Item 25 - "AR 635-200, paragraph 14-12c"

15.  On 30 December 2008, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 

16.  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.  Paragraph 12 provides for the conditions that subject a Soldier for discharge under this chapter.  It states:

	a.  Paragraph 14-12a (minor disciplinary infractions).  A pattern of misconduct consisting solely of minor military disciplinary infractions.  

	b.  paragraph 14-12b (pattern of misconduct).  A pattern of misconduct consisting of one of the following: discreditable involvement with civil or military authorities and/or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

	c.  Paragraph 14-12c (commission of a serious offense).  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Courts-Martial such as an absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense and/or abuse of illegal drugs is serious misconduct.  However, relevant facts may mitigate the nature of the offense.  

17.  Action will be taken to separate a member for misconduct when it was 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.

18.  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.

19.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states items 4a and 4b, obtained from the Soldier's record, shows the active duty rank and pay grade at the time of the Soldier's separation and Item 12h shows the effective date of the Soldier's pay grade.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his rank/grade, the evidence of record shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ on 12 April 2007.  His punishment consisted of, among other things, a reduction to PVT/E-1.  He was then promoted to PV2/E-2 on 1 September 2007.  However, he was convicted on 29 November 2007 by a summary court-martial that sentenced him to a reduction to PVT/E-1.  He held this rank/grade until his discharge on 30 May 2008.  There is no evidence that he was again promoted to PV2/E-2 between the date he was convicted by a summary court-martial on 29 November 2007 and the date he was discharged on 30 May 2008.

2.  With respect to his separation authority and character of service, the evidence of record shows the applicant committed various serious offenses including damaging property, resisting apprehension, and assault.  Accordingly, his chain of command initiated separation action against him under the provisions of paragraph 14-12c of Army Regulation 635-200.  The separation authority approved the discharge and the appropriate entry was entered in the separation authority block of his DD Form 214.  There is neither an error nor an injustice. 

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his extensive history of misconduct that included three instances of NJP and two instances of courts-martial, the applicant's service clearly does not merit an upgrade to his 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)                                         AR20100028670





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ABCMR Record of Proceedings (cont)                                         AR20100028670



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