IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110000315 


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 general discharge to an honorable discharge.

2.  The applicant states that he was tried by a summary court-martial.  Although he did have some problems, he was not a bad Soldier.  He believes that removing most of his military benefits that he was entitled to was further punishment that was not needed.  He served his country the best way he could and also completed his term of enlistment.

3.  The applicant does not provide any additional documents.

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Regular Army (RA) on 13 January 2004.  He was trained in, awarded, and served in military occupational specialty (MOS) 21B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

2.  On 6 March 2007 while in Iraq, the applicant was convicted by a summary court-martial of failing to remain in the proper uniform while on duty as a lookout and for sleeping while on his post before he was regularly relieved.

3.  On 28 May 2007 while in Iraq, the unit commander notified the applicant he was initiating action to separation him under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c.  The unit commander cited the applicant’s commission of a serious offense for being found guilty by a summary court-martial of failing to stay in the proper uniform and sleeping at his post prior to being regularly relieved as the basis for the action.  On the same date, he acknowledged receipt of the notification.

4.  On 5 June 2007, the applicant 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 elected to submit a statement in his own behalf.

5.  The applicant further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

6.  The applicant's intermediate commander concurred with the unit commander's recommendation and also recommended approval with a general discharge.

7.  The appropriate separation authority waived further rehabilitative efforts and approved the applicant’s separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for commission of a serious offense.  He directed the applicant be discharged with a general discharge.

8.  On 28 June 2007, the applicant was discharged accordingly.  He completed a 3 years, 4 months, and 17 days of total active service.  

9.  On 28 August 2007 the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.  On 26 August 2008, his request was denied. 

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.
11.  Army Regulation 635-200, paragraph 3-7a of the same regulation 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 evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant's record reveals a disciplinary history that includes a summary court-martial.  As a result, his record was not sufficiently meritorious to support the issue of an honorable discharge by the separation authority at the time of his discharge, nor is it sufficiently meritorious to support an upgrade of his discharge at this late date.  

3.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility for veterans or medical benefits for the purpose of establishing eligibility for benefits from another agency.  Every case is individually decided based upon its merits when an applicant requests a change 
in his or her discharge.  Additionally, the granting of Department of Veterans Affairs (DVA) benefits is not within the purview of the ABCMR and any questions regarding eligibility for such benefits should be addressed to the DVA.

4.  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)                                         AR20110000315



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ABCMR Record of Proceedings (cont)                                         AR20110000315



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