BOARD DATE:	9 February 2012

		DOCKET NUMBER:  AR20110015416


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* he had two court-martial convictions while he was in the Army – the first resulted from his refusal to obey an order he interpreted to be illegal
* he was "in the right" and he performed 90 days of extra duty in Iraq for being right
* he was harassed throughout his active service, which is illegal
* he had less than 5 months of service remaining when he was discharged
* as a result of his discharge, he has been denied certain benefits he deserves such as education, unemployment benefits, and medical care  
* it is against the law to withhold medical care from one who needs it
* he served his country and he should not be treated as a second-class citizen

3.  The applicant provides a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 9 May 2007.  






CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 August 2006.  He completed training and was awarded military occupational specialty 21E (Heavy Construction Equipment Operator).  

2.  His record shows he received developmental counseling on numerous occasions between 5 February 2007 and 21 October 2009, for instances of misconduct, including being disrespectful towards commissioned and non-commissioned officers (NCOs), insubordination, lying to an NCO, dereliction of duty, failure to properly perform corrective training, failure to follow orders, failure to maintain standards, failure to follow command policies, and failure to be at his appointed place of duty at the time prescribed.

3.  On 15 October 2009, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty at the time prescribed.

4.  He was notified by his immediate commander of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct – pattern of misconduct.  On 30 October 2009, the applicant acknowledged receipt of the notification memorandum.

5.  On 2 November 2009, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him under Army Regulation 635-200, chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He chose to submit statements in his own behalf at a later date.

6.  On 4 November 2009, he submitted a statement in his own behalf, in which he requested to be retained in the Army until his expiration term of service date. 

7.  The separation authority approved his discharge due to misconduct and directed that he be given a general discharge.

8.  On 2 December 2009, he was discharged under the provisions of Army Regulation 635-200, chapter 14, with a general discharge.  His DD Form 214 shows he was credited with the completion of 3 years, 3 months, and 23 days of creditable active service during his period of enlistment.  The highest rank/grade he attained while serving on active duty was private/E2.

9.  On 12 January 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge.

10.  He provides an SF 600, dated 9 May 2007, which shows he was treated at the Fort Richardson Troop Medical Clinic on 9 May 2007.  This form lists his principle complaint or reason for appointment as being "overweight."

11.  Army Regulation 635-200 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, 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

12.  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 for an upgrade of his general discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and was advised of the basis for the separation action.

3.  Based on his record of indiscipline, including multiple instances of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20110015416



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