IN THE CASE OF:	  

		BOARD DATE:	      15 September 2011

		DOCKET NUMBER:  AR20110004504 


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 be upgraded and Item 28 (Narrative Reason for Separations) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states, in effect, he has matured over the past two years by working, taking care of his family, being a positive role model, and a productive citizen to society.

3.  The applicant does not provide any evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant entered the Regular Army, on 14 December 2006, at the age of 28.  His record shows he completed basic combat and advanced individual training and was awarded the military occupational specialty 88M10 (Motor Transport Operator).  The highest rank/grade he attained while serving on active duty was private first class/E-2.

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following:

* on 7 April 2008, for being absent without leave (AWOL) for the period 21 February 2008 to 10 March 2008
* on 16 December 2008, for disrespecting and disobeying lawful orders of a superior commissioned officer

4.  On 16 June 2008, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for a pattern of misconduct.  The basis for the action was his Article 15 and numerous negative counselings for failure to go to accountability formation on several occasions between 12 February and 20 March 2008. 

5.  On 17 June 2008, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.

6.  DA Form 3975 (Military Police Report), dated 12 February 2009, shows the applicant disrespected superiors and was apprehended after a loaded weapon and ammunition was found in his barracks room. 

7.  Records show that on 20 February 2009, the discharge authority reviewed the applicant's Medical Evaluation Board proceedings and determined his medical condition was not a direct or a substantial contributing cause of the conduct that led to his recommendation for administrative elimination.  Additionally, the discharge authority determined there were no other circumstances in the applicant's case that would warrant disability processing instead of further processing for an administrative separation.

8.  On 20 February 2009, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed the issuance of an under honorable conditions (general) discharge.  On 26 February 2009, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged for misconduct - pattern of misconduct.  He completed 2 years, 1 month, and 23 days of creditable active service during this period.

9.  On 16 December 2009, the President of the Army Discharge Review Board informed the applicant that the Board had reviewed his case and determined he was properly and equitably discharged and that his request for an upgrade of his discharge was denied. 

10.  Army Regulation 635-200 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge should be upgraded and his narrative reason for separation should be changed was carefully considered; however, there is insufficient evidence to support this request.

2.  Records show the applicant was over 26 years of age at the time of his indiscipline.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  The evidence of record confirms the applicant's commander notified him of the intent to separate him with an under honorable conditions (general) discharge.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.
4.  The applicant's record of service shows he received an Article 15 on two occasions, numerous counselings for failure to go to accountability formation on several occasions, instances of disrespecting and disobeying orders of superiors, and possessing a loaded weapon with ammunition in his barracks.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  Therefore the applicant is not entitled to an honorable discharge.  

5.  Based on the foregoing, there is insufficient evidence to grant the 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)                                         AR20110004504



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004504



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1