IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110011302 


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, the father of a deceased former service member (FSM), requests an upgrade of the FSM's discharge to general under honorable conditions.

2.  The applicant states the family would like a veteran's marker to place on the FSM's grave.  He further states:

My son…made a mistake while he was on active duty in the U.S. Army.  He was having a difficult time dealing with his brother's…death.  His brother committed suicide.  After his discharge from active duty, [the FSM] joined the Ohio Army National Guard, [from] which he was honorably discharged [in] July 2001 and the U.S. Army Reserve, [from] which he was honorably discharged [in] December 2006.  [The FSM] joined [a] fire department as a volunteer in 2005.  He committed suicide on July 3, 2010.  [The FSM] has a son…who is 12 [years] old.  The main reason I am requesting an upgrade in [the FSM's] discharge [is] for the good of his son.  His son only knows that [the FSM] was in the Army when he was born…His son only knows of the good things his father did such as:  volunteer fireman and his Army [and] National Guard Reserve time.  I see nothing good coming from his bad discharge.  Please consider [the FSM's] life after his discharge from the U.S. Army.  Please consider the feelings of his 12 year old son.  He only has good memories of his father.


3.  The applicant provides two Honorable Discharge Certificates, a certificate of affiliation with the U.S. Army Medical Department Regiment, a memorandum requesting an upgrade of the FSM's discharge, a Certificate of Live Birth, and a Certificate of Death.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army (RA) for a period of 2 years and 16 weeks on 30 January 1997.  

2.  The record shows he was counseled for:

* failure to report to first formation on 3 August 1997
* failure to report and disobeying a lawful order on 4 and 5 August 1997
* being absent without leave (AWOL) from 18 August to 15 September 1997

3.  A DA Form 4126-R (Bar to Reenlistment Certificate) shows his commander recommended the FSM be barred from reenlistment in the U.S. Army due to being AWOL from 18 August to 15 September 1997.  On 7 October 1997, the FSM acknowledged receipt of his commander's recommendation.  He acknowledged he had been counseled and advised of the basis for the action and indicated he did not desire to submit a statement in his own behalf.  The bar to reenlistment was approved on 22 October 1997.  He elected not to appeal.

4.  A DD Form 458 (Charge Sheet) shows, on 6 November 1997, he was charged with being AWOL from 18 August to 15 September 1997.  

5.  A DD Form 2329 (Record of Trial by Summary Court-Martial) shows he was found guilty of being AWOL from 18 August to 15 September 1997.  He was sentenced to reduction to the grade of E-1, a forfeiture of $600 pay, and confinement for 30 days.  

6.  On 6 January 1998, he was counseled for not meeting standards, "blowing off" noncommissioned officers (NCO), and a lack of motivation.

7.  On 13 January 1998 and 22 July 1998, his commander reviewed his bar to reenlistment and determined it would remain in effect.

8.  On 27 July 1998, the FSM signed three DA Forms 4856 (General Counseling Form) acknowledging counseling for:

* failure to report to guard duty on 24 July 1998
* failure to be contacted while his unit was in Division Ready Force 1 (DRF1) status on 25 July 1998
* failure to report on time for guard duty on 26 July 1998

9.  On 29 July 1998, he was counseled for failure to follow a lawful order and failure to report for duty on 25 July 1998.

10.  On 26 August 1998, he was counseled for being disrespectful towards an NCO and sedition.

11.  On 27 August 1998, he was counseled for failure to report, disobeying a lawful order, and being disrespectful towards an NCO.  

12.  On 31 August 1998, he received counseling informing him he was being recommended for action under the Uniform Code of Military Justice (UCMJ) for being AWOL for guard duty and being disrespectful towards an NCO.

13.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 16 September 1998, shows a psychologist examined him and found him psychiatrically cleared for any administrative action deemed appropriate by his chain of command.  

14.  On 17 September 1998, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 25 July 1998.  

15.  On 14 October 1998, he acknowledged receipt of notification that his commander was initiating action to separate him for a pattern of misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12b, and that his commander was recommending he receive an under other than honorable conditions discharge.

16.  On 14 October 1998, he acknowledged he had been afforded the opportunity to consult with counsel and elected not to submit statements in his behalf.  He acknowledged that if he was subject to issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

17.  In an undated memorandum, his commander recommended his separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, 


based on the FSM's court-martial for being AWOL, failing to report on diverse occasions, and disrespecting NCOs on diverse occasions.  

18.  On 14 December 1998, the separation authority directed the FSM be separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b and that he receive an under other than honorable conditions discharge.  On 18 December 1998, he was discharged accordingly.  He completed 1 year and 9 months of net active service with 49 days of time lost.

19.  On or about 29 May 2000, the FSM submitted an application for review for review of his discharge to the Army Discharge Review Board (ADRB).  His complete application is not available, but the record does include page 2 of the DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) he submitted.  In item 8 (Issues) he stated:

My discharge was inequitable because I exhausted all of the resources available to me in the service, i.e., chain of command, chaplain, sergeant major, and hospital.  I lost my brother to suicide and felt I had nowhere to turn, so I went AWOL.  I was returned, court-martialed, sent to jail, and then returned to the same unit.  I was not given a transfer, and I was not given a proper chance for rehabilitation.  The time I spent serving my country was not enjoyable and was a very draining experience for me.  I wish it could have turned out better.  I am asking to be upgraded to honorable so I can continue on with my life, not having a black mark in my past to hold me back.  

20.  The ADRB Case Report and Directive shows the ADRB reviewed the FSM's record and found his discharge was both proper and equitable.  On 21 July 2000, the President, ADRB, informed the FSM that his application for a change in the character of and/or reason for discharge was denied.  

21.  On 25 July 2000, the State of Ohio, Adjutant General's Department, Columbus, OH, approved an enlistment waiver, and on 27 July 2000, the FSM enlisted in the Army National Guard (ARNG) of the United States for a period of 6 years and 3 months.  

22.  The FSM's record does not include the complete facts and circumstances of his ARNG service.  The applicant provides an Honorable Discharge Certificate showing the FSM was discharged from the ARNG on 26 July 2001.  



23.  An ARPC Form 249-E (Chronological Statement of Retirement Points) shows he served in the U.S. Army Reserve (USAR) from 27 July 2001 to 31 October 2006.

24.  On or about 24 January 2002, the FSM again submitted a DD Form 293 to the ADRB requesting upgrade of his discharge from the RA to honorable.  On 1 February 2002, the Chief, Army Review Boards Agency Support Division, St. Louis, MO, informed him that his discharge review was not subject to reconsideration except as indicated in Army Regulation 15-180 (Army Discharge Review Board).  He was advised that he could reapply to the ADRB by requesting a personal appearance or, if he did not desire or was unable to make a personal appearance, he could apply to the ABCMR.  The record does not show that he pursued either option.  

25.  Orders D-10-625913, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 31 October 2006, honorably discharged him from the USAR effective the date of the orders.  

26.  The FSM's record shows he enlisted in the USAR on 1 October 2009 for a period of 6 years.  

27.  A DD Form 1300 (Report of Casualty) shows the FSM died on 3 July 2010.

28.  The applicant provides a memorandum, dated 1 July 2001, to the ABCMR from a sergeant first class/E-7 Readiness NCO/Master Gunner in Company A, 1st Battalion, 107th Armor, 37th Armored Brigade, Newton Falls, OH.  The NCO requested consideration be granted to the FSM for upgrade of his RA discharge in light of his exemplary Reserve service.  The NCO praised the FSM's performance without qualification and stated he showed limitless potential for a career in the ARNG.  

29.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.  

	b.  Paragraph 3-7b provides that 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of the FSM's discharge from the RA.  

2.  The applicant has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings that led to the FSM's discharge or that the FSM's rights were not protected throughout the separation process. 

3.  The evidence of record shows the FSM engaged in a pattern of misconduct during his RA service that clearly warranted his discharge.  He was counseled on numerous occasions, received NJP, and was convicted by a summary court-martial of being AWOL.  Based on this record of indiscipline, the separation authority made the reasonable determination that the FSM's service was not satisfactory and directed his discharge under other than honorable conditions.  

4.  The FSM's honorable service in the ARNG and USAR subsequent to his RA discharge was carefully considered.  While the FSM should be commended for his later service, it does not provide a sufficient basis upon which to upgrade an RA discharge earned through willful misconduct.  

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)                                         AR20110011302



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011302



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1