IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110012715 


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 he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for underage drinking while deployed to Kosovo.  He contends that he and another Soldier were both charged with this same offense; however, the other Soldier's case was thrown out.  He states his case should have also been thrown out; therefore, he would not have been discharged.  He also believes that the legal age for drinking in Kosovo was 16 years of age.

3.  The applicant provides a copy a document from Wikipedia showing the legal drinking ages in various countries in Africa and Europe.

CONSIDERATION OF EVIDENCE:

1.  On 11 March 1999, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 91B (Medical Specialist).  He was subsequently assigned to Headquarters and Headquarters Company, 3rd Battalion, 7th Infantry Regiment, Fort Stewart, GA.

2.  On 13 June 2001, the applicant was counseled by his supervisor for failing to show for work call.


	a.  He was informed that he could be subject to punishment under the Uniform Code of Military Justice (UCMJ).

	b.  The applicant was ordered to buy an alarm clock and to show the sergeant the receipt for the purchase.  He was also ordered to report to the sergeant at 0710 each day for 30 days from 14 June to 12 July 2001.

	c.  The applicant agreed with the counseling and did not provide any comments.

3.  On 4 July 2001, the applicant was counseled by the same sergeant for being disrespectful to a noncommissioned officer (NCO).

	a.  After a room inspection, the sergeant directed the applicant to clean a refrigerator because he was the lowest ranking Soldier as addressed one week earlier.

	b.  The applicant replied that he was not the lowest ranking and that slavery was over but [he] is treated like a slave.

	c.  The sergeant stated that the applicant had interrupted him, ignored him when told to be at ease, and kept mouthing off.  The applicant's attitude and lack of military bearing made understanding him difficult.

	d.  The applicant was informed that an attempt to rehabilitate him would not be made at the expense of the platoon.

4.  On 19 October 2001, the applicant was counseled by his team leader for failing to maintain a military appearance.

	a.  The applicant reported for work without shaving.

	b.  He was informed of the regulatory standards for shaving and maintaining a mustache.

	c.  The applicant agreed with the counseling and did not provide any comments.

5.  On 4 November 2001, A DA Form 3975 (Military Police Report) from the Provost Marshal, Task Force Falcon (TFF), recorded the following:


	a.  The applicant was identified as having consumed alcohol on 2 November 2001 in the Morale, Welfare, and Recreation (MWR) building located at Camp Monteith, Kosovo.

	b.  He was identified as the subject of the report.

	c.  The offense cited was disrespect to other NCO/PO (Police Officer) in violation of Article 91, UCMJ.

	d.  The report narrative states, in effect, that a sergeant noticed an odor of alcohol from the applicant and another Soldier.  He approached the applicant and identified himself at which time the applicant became very disrespectful.  Upon arrival of the military police, the applicant was advised of his rights which he invoked and declined to be questioned.  The United Nations Military-Kosovo police arrived on scene and administered breath alcohol tests to both the applicant and the other Soldier.  The other Solder had a result of .054 blood alcohol level; however, the applicant failed to cooperate with test procedures resulting in a test failure.  It was determined that the evidence was sufficient to title both Soldiers with the above offenses.

6.  On 4 November 2001, the applicant's platoon sergeant counseled him pertaining to the events of 2 November 2001 concerning:

	a.  violation of General Order Number 1 that specifically prohibited the consumption of alcohol during the deployment of the task force in support of Operation Joint Guardian;

	b.  violation of the Army's policy concerning under aged drinking; and

	c.  his detainment by the military police and subsequent charges.

7.  On 31 January 2002, the applicant's squad leader counseled him pertaining to separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12b, for misconduct.

	a.  The counselor did not specify what the misconduct was, but advised the applicant that he was being counseled for his patterns of misconduct and that his misconduct would not be tolerated in the command.  He was advised that if separated, he could receive an honorable, general, or under other than honorable conditions discharge.  If a discharge less than honorable were issued, substantial prejudice in civilian life could result, in addition to loss of many or all veteran benefits, both Federal and State, which could result in a hardship.


	b.  He further advised the applicant that he was taking the counseling statement to the first sergeant and company commander for further consideration.

	c. The applicant agreed with the counseling and added the remarks, "The misconduct stated on the other side happened on November 8, 2001 while in Kosovo."

8.  On 15 January 2002, the applicant underwent a mental status evaluation wherein the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory was good.  There was no significant mental illness.  The applicant was mentally capable of participating in the separation processing.

9.  In an undated memorandum, the applicant's company commander notified him that he was intending to take action to discharge him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for commission of a serious offense based on his being disrespectful to an NCO officer and consumption of alcohol while under 21 years of age.

10.  On 22 February 2002, the applicant acknowledged the commander's notification.  He consulted with counsel concerning his rights.  He indicated that he would not submit a statement in his own behalf.  He understood that he could expect to encounter extreme prejudice in civilian life as a result of a general discharge.

11.  The applicant’s commander subsequently recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for commission of a serious offense.  He also requested waiver of the requirement for rehabilitation.  The commander indicated the specific, factual reasons for the action were his disrespect to an NCO on 2 November 2001 and consumption of alcohol while under the age of 21 on 11 November 2001.  The commander also indicated that a record of other disciplinary action, including NJP was enclosed with the proposed separation action; however, the NJP is not available for review.

12.  On 5 March 2002, the appropriate authority approved the recommendation for waiver of rehabilitative transfer and discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, with a general discharge.  On 25 March 2002, the applicant was discharged accordingly.  He completed
3 years and 15 days of creditable active service.


13.  On 24 May 2010, Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  After careful review of his application, military records, and all other available evidence, the ADRB determined that his discharge was proper and equitable and denied his request.

14.  Army Regulation 635-200 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 the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  The misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely-related offense under the UCMJ.

	c.  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.  Under the UCMJ, the maximum punishment allowed for violation of:

	a.  Article 91 for disrespect towards a superior NCO is 6 months confinement and a punitive discharge; and

	b.  Article 92 for disobeying a general order is 2 years confinement and a punitive discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to honorable because his NJP for under aged drinking was wrong.  He believes the legal age at the time in Kosovo was 16 years of age, implying his punishment was inappropriate or too harsh.


2.  There is no available evidence of record and the applicant did not provide any supporting documentation showing the details of any NJP he may have received.

3.  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.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The UCMJ authorizes a punitive discharge for the applicant's misconduct.  The commander's decision to administratively discharge him resulted in a far lesser punishment and was not unjust or too harsh.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110012715



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ABCMR Record of Proceedings (cont)                                         AR20110012715



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