BOARD DATE: 24 January 2012
DOCKET NUMBER: AR20110013874
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 under other than honorable conditions discharge to at least a general discharge.
2. The applicant states:
* he was in civil court for trial and at the end the judge dismissed the case
* his crime was dismissed and he was never convicted of a felony
* he takes full responsibility for his actions
* he was offered deferred adjudication in Texas and he completed
41 months of community supervision
3. The applicant provides a court order, dated 24 June 2010.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 11 April 2002 for a period of
3 years. He completed his training and he was awarded military occupational specialty 11C (indirect fire infantryman).
2. On 12 March 2004, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12c, for misconduct (commission of a serious offense) for being confined by civilian authorities pending trial for 3 counts of aggravated robbery. The evidence of record contains an El Paso Police Department Booking Docket, dated 30 December 2003.
3. On 15 March 2004, he acknowledged receipt of the commanders proposed separation action. His election of rights is not available for review.
4. The separation packet was subsequently through the appropriate chain of command. On 23 April 2004, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of a discharge under other than honorable conditions.
5. He was discharged accordingly on 14 May 2004. He completed 2 years, 1 month, and 4 days of creditable active service.
6. He provided a court order, dated 24 June 2010, that states:
* he was placed on community supervision in El Paso, TX on 24 January 2007 for a period of 10 years for the offense of aggravated robbery
* he completed 41 months of community supervision
* he satisfactorily complied with all terms and conditions of his supervision
* the proceedings entered against him were dismissed and he was discharged from community supervision
7. On 17 May 2011, the Army Discharge Review Board denied his request for an honorable discharge.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. 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, conviction by civil authorities, and abuse of illegal drugs. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
9. Army Regulation 635-200, paragraph 3-7a, states 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.
10. 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicants contention his crime was dismissed and he was never convicted of a felony. He provided evidence that shows he was placed on community supervision in 2007 for a period of
10 years for the offense of aggravated robbery. He was discharged early from this supervision for satisfactorily complying with the terms and conditions of the supervision.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
3. He committed a serious civil offense while in the Army. As a result, his record of service was not satisfactory and 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 general discharge.
4. 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.
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