IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100029734 


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 upgrade of his under honorable conditions (general) discharge.

2.  The applicant states he was a good Soldier.  He was awarded the Expert Infantryman Badge (EIB) for proficiency as an infantryman and the Physical Fitness Badge (PFB) for his outstanding performance on the Physical Fitness Test.  He deployed to Iraq where he was awarded the Combat Infantryman Badge (CIB).  Since discharge he is pursuing a degree in elementary education.  He has a passion for helping people and he believes that he can have the most impact by working with children.  Since discharge, he has had no issues with law enforcement or other authority figures.  He learned his lesson from his poor decision making in the Army.

3.  The applicant provides no documentation to substantiate his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 December 2004.  He completed basic training, advanced individual training, and parachute training and was awarded military occupational specialty (MOS) 11C1P as a parachute- qualified indirect fire infantryman.

2.  He was stationed in Alaska on 6 June 2005, advanced to private first class (PFC) on 30 December 2005, and deployed to Iraq on 5 October 2006.

3.  A 9 December 2006 summary court-martial convicted the applicant of disrespect toward a second lieutenant and willful disobedience of a staff sergeant, both on 23 November 2006.

4.  On 1 August 2007, another summary court-martial convicted him of absence from his appointed place of duty (AAPD), a foot march formation on 23 June; disrespect to a staff sergeant by ripping up a counseling statement on 5 April; willful disobedience of a staff sergeant on 23 June; willful disobedience of a first lieutenant on 17 February; and willful disobedience of a first lieutenant on 23 June 2007.

5.  At a Behavioral Health Evaluation, on 6 September 2007, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his mood and affect were unremarkable, and his thinking process and content were clear and normal.  He displayed good judgment and impulse control.  In the evaluator's opinion; there was no psychiatric disease or defect warranting disposition through medical channels.  The applicant had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met mental health retention standards.  There were no diagnostic findings.  A 19 September 2007 medical examination cleared him for separation.

6.  On 23 September 2007, the company commander notified the applicant that he was initiating separation action for a general discharge under the provisions of Army Regulation 635-200, chapter 14 for a pattern of misconduct.  He was advised that he had the right to consult with counsel, be represented by counsel, submit statements in his own behalf, and to obtain copies of any documents that would be provided to the separation authority.  

7.  The applicant consulted with counsel and was advised of his rights.  He waived representation by counsel.  

8  The company commander recommended the applicant for separation due to a pattern of misconduct.  The separation authority approved the recommendation and directed that a general discharge be issued.

9.  On 18 October 2007, the applicant was separated with a general discharge under the provisions of Army Regulation 635-200, chapter 14 for a pattern of misconduct,  He had completed 2 years, 9 months, and 19 days of creditable service.  He was authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), CIB, EIB, and the Parachutist Badge.

10.  On 26 May 2010, the Army Discharge Review Board denied the applicant's request to upgrade the discharge.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel and provides in:

	a.  Chapter 14 the policy and procedures for separating members for misconduct.  Specific categories include a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline).  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.  

   b.  Paragraph 3-7a 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.
   
12.  Table of Maximum Punishments of the Manual for Courts Martial shows that a punitive discharge is authorized for any offense of disrespect toward a superior ranking officer or for willful disobedience.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's combat experience as evidenced by the CIB, his proficiency  as evidenced by the EIB, and his physical fitness as evidenced by the PFB are acknowledged and respected; however, these matters do not outweigh his pattern of misconduct as evidenced by his repeated commission of serious offenses for which he could have received a punitive discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

3.  In view of the foregoing there is no basis for granting the applicant's 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)                                         AR20100029734





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ABCMR Record of Proceedings (cont)                                         AR20100029734



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