IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110001988 


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 his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

	a.  In October/November 2005, while on an obstacle course training with his unit for deployment to Iraq, he tore some ligaments in his left shoulder and injured two discs in his lower back.  Due to his injuries, depression, and anxiety, he was prescribed a lot of different medications by his orthopedist and psychiatrist.

	b.  After he was injured he was immediately looked at as an outcast and he was told his injuries were being faked by the unit commander and first sergeant.  This pressure caused him to drink alcohol heavily.  He received an off-post citation for driving under the influence (DUI) on 12 December 2005 for which he takes full responsibility for his actions.  He received a second DUI on 25 December 2005 and was charged with driving with a suspended license.  He contends he was following an order from his first sergeant to bring his vehicle back on post.  He tried to appeal it, but his appeal was denied.

	c.  He had medical evaluation board (MEB) examinations on 28 December 2005 and 3 January 2006.  He was scheduled for a mandatory MEB on 10 January 2006, but shortly before his appointment his first sergeant told him he was going to do everything in his power to make sure he didn't get a medical discharge and that his MEB had been terminated.  This made his depression, alcohol consumption, and prescription drug use worse.  He was advised by his doctors to enroll in the Alcohol and Substance Abuse Program, which he did and he completed the 6-week program.

3.  In a statement, dated 16 November 2010, he points out:

* the DUI was also due to numerous drugs in his system from an injury incurred during training
* the driving without a license offense was because the first sergeant ordered him to bring his vehicle back on post even though he told the first sergeant his license was suspended  
* the check was written by his ex-wife while he was away at training
* once he returned to post and found out, he paid the check within 2 weeks

4.  The applicant provides:

* Army Discharge Review Board (ADRB) proceedings
* personal statement
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 16 November 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 16 November 2004 for a period of 4 years.  He completed training and was awarded military occupational specialty 89B (ammunition specialist).

2.  On 7 December 2005, nonjudicial punishment (NJP) was imposed against the applicant for breaking medical quarantine.

3.  On 3 March 2006, NJP was imposed against the applicant for misconduct (the offense is illegible).

4.  On 21 March 2006, an MEB diagnosed the applicant with chronic left shoulder pain.  The MEB referred his case to a physical evaluation board (PEB).

5.  He was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct (commission of a serious offense).  The cited reasons for separation were:

* DUI on 16 December 2005 and 25 December 2005
* driving with a suspended license
* writing a bad check

6.  On 1 May 2006, his PEB proceedings were terminated because he was pending separation for misconduct.

7.  On 2 May 2006, he consulted with counsel and waived consideration of his case by an administrative board contingent upon receiving a general discharge.

8.  On 25 May 2006, the separation authority disapproved his conditional waiver and directed that he appear before an administrative separation board.

9.  A board of officers convened on 17 October 2006 and the applicant appeared with counsel.  The board of officers recommended that he be discharged from the military under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of an under other than honorable conditions discharge.

10.  On 8 November 2006, the separation authority approved the findings and recommendations and directed the issuance of an under other than honorable conditions discharge.  The separation authority noted the MEB referred the applicant's case to the PEB; however, he determined the applicant's medical condition was not a direct or substantial contributing cause of his misconduct and the administrative separation was appropriate.

11.  The applicant was discharged under other than honorable conditions on 21 November 2006 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He completed a total of 2 years and 6 days of creditable active service.

12.  On 24 June 2010, the ADRB denied his request for a discharge upgrade.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct the issuance of a general discharge if such was merited by the member's overall record.



14.  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.

15.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states that an enlisted Soldier may not be referred for or continue disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  He contends his first sergeant was the reason his MEB/PEB proceedings were terminated.  However, since he separated under a regulatory provision that authorized a characterization of under other than honorable conditions, and in accordance with the governing regulation, it appears he was not eligible to continue disability processing.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His remaining contentions were carefully considered.  However, his record of service included two NJPs and two DUI's.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general 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 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)                                         AR20110001988



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ABCMR Record of Proceedings (cont)                                         AR20110001988



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