IN THE CASE OF:	  

		BOARD DATE:  1 May 2012

		DOCKET NUMBER:  AR20110021102 


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:

The applicant requests, statements, and supporting documentation are submitted through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests a change to the applicant's narrative reason for separation to Secretarial Authority and an upgrade of the applicant's general discharge (GD) under honorable conditions to an honorable discharge (HD).

2.  Counsel states the applicant's discharge was both in error and unjust.  He gives the following reason to support this assertion:  Before separation under chapter 14 is appropriate under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), rehabilitative measures must be taken and a determination made that further rehabilitative efforts are unlikely to succeed and/or rehabilitation is impracticable or the Soldier is not amenable to rehabilitation.

3.  Counsel states that according to the commander, the applicant's record was devoid of prior counseling or adverse information and the applicant's discharge was based on a single driving under the influence (DUI) offense and the mental health examination gave no insight into whether the applicant was alcohol dependent or whether the incident was a one-time mistake.  It also lacked discussion of the applicant's potential for rehabilitation.  The governing regulation states that when considering administrative separation, a commander should consider the Soldier's entire military record.  It also provides that isolated incidents have little probative value in determining whether administrative separation should be effective.  He further indicates there is no evidence the applicant was ever considered for rehabilitation, much less that he would have been unsuccessful if referred for treatment for alcohol abuse.

4.  Counsel claims there is no documentation of any factual ground that authorized or justified waiver of the mandatory rehabilitation efforts in the applicant's case.  He states that with the applicant's history in the Army with no prior adverse actions in nearly 4 years, it is likely such rehabilitation efforts would have been entirely successful.  However, the applicant was denied the opportunity to obtain this mandatory rehabilitation in order to complete his enlistment and permit the Army to realize the substantial investment it had in the applicant's training.  Accordingly, based upon both error and injustice, the applicant is requesting that the Board grant him the requested relief.

5.  Counsel provides a 10-page brief with 18 tabs containing supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant enlisted in the Regular Army for 4 years and 25 days on 27 October 2005.  He was trained in and awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  He was advanced to specialist/E-4 on 1 November 2008, the highest grade he held on active duty.

2.  The record shows the applicant served in Iraq, a designated imminent danger pay area, from 6 May 2007 through 22 July 2008.  It further shows he earned the National Defense Service Medal and Driver and Mechanic Badge with Driver-Wheeled Vehicle Bar.  His record documents no acts of valor or significant achievement.

3.  The record shows the applicant was formally counseled on the following dates for failing to meet the infractions identified:

* 20 January 2009, failure to maintain his barracks room (smoking inside room, ashes found on desk, cigarettes inside of can, excessive trash in room, and unclean room)
* 20 January 2009, failure to report to class on time
* 28 January 2009, failure to put forth effort during physical training
* 30 January 2009, failure to meet height/weight/body fat standards
* 30 January 2009, failure of the Army Physical Fitness Test (APFT)
* 10 February 2009, bar to reenlistment counseling
* 22 June 2009, arrest by civil authorities for DUI of alcohol
* 22 June 2009, failure to meet weight/body fat standards
* 22 June 2009, failure of the APFT
* 11 August 2009, failure to keep his barracks room to standard

4.  On 26 March 2009, the unit commander prepared a DA Form 4126-R (Bar to Reenlistment Certificate) on the applicant.  The reason for initiating the action was the applicant's repeated failure to meet APFT and weight standards.  On 7 April 2009, the Bar to Reenlistment was approved by the appropriate authority.

5.  On 22 June 2009, the applicant was apprehended by civil authorities for DUI of alcohol and his installation driving privileges were suspended by the Garrison Commander, Fort Stewart/Hunter Army Airfield, Georgia.

6.  On 25 June 2009, the applicant was administratively reduced to private first class (PFC)/E-3 based on the DUI offense.

7.  The unit commander notified the applicant of the intent to initiate action to separate him by reason of commission of a serious offense under the provisions of paragraph 14-12c, Army Regulation 635-200.  The commander cited the applicant's DUI offense of 20 June 2009 as the basis for the action.

8.  On 22 September 2009, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation and its effects, the rights available to him, and the right to waive his rights.  Subsequent to this counseling, the applicant completed an election of rights and chose to submit a statement in his own behalf.  He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a GD were issued to him.

9.  In the statement the applicant submitted, he stated he fully understood the seriousness of his DUI offense and the danger it was to not only himself, but to the community as well.  He stated he did not take his offense lightly and realized how badly it reflected not only on him, but on the Army as well.  He further indicated he would never commit this offense again.  He stated he sincerely tried to pass the APFT.  He indicated he did exercises with his company and participated in company remedial training when it was offered.  He stated he was careful in what he ate and tried hard to maintain his weight.  He requested to be given the opportunity to get in shape and pass his APFT and would be happy to participate in any and all physical training activities prescribed.  He stated that given the opportunity, he would gladly continue to serve in the Army.  However, if the decision was to discharge him he requested to be allowed to serve through the expiration of his term of service so he could receive an HD.

10.  On 30 September 2009, the separation authority approved the applicant's separation under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense and directed that he receive a GD.  On 14 October 2009, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he held the grade of PFC/E-3 on the date of his discharge and he completed a total of 3 years, 11 months, and 18 days of active military service.

11.  On 26 January 2011 after carefully considering all available evidence and the applicant's military record, the Army Discharge Review Board (ADRB) found the applicant's discharge was proper and equitable and voted to deny relief.  The ADRB voted not to upgrade his discharge to an HD by a 3 to 2 vote and not to change the narrative reason for separation by a 5 to 0 vote.

12.  Army Regulation 635-200 prescribes the Army's enlisted administrative separation policy.  Paragraph 1-16 provides guidance on counseling and rehabilitative requirements and lists separation reasons that require rehabilitative measures prior to separation.  Commission of a serious offense under paragraph 14-12c is not included in the reasons requiring rehabilitation.

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

	b.  Paragraph 14-3 contains guidance on characterization of service for members separated under chapter 14.  It states a discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

	c.  Paragraph 14-12c provides for separating members for commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The request of the applicant and his counsel to upgrade the applicant's discharge to an HD and to change the narrative reason for separation to Secretarial Authority has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record shows the applicant's separation process was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  By regulation, rehabilitative measures are not required to be taken for members being separated under the provisions of paragraph 14-12c by reason of commission of a serious offense.  Further, a discharge UOTHC is normally considered appropriate for members separated for misconduct.

4.  Clearly, the length and honorable nature of the applicant's overall record of service, which included combat service in Iraq, was the basis for receipt of a GD instead of a discharge UOTHC that is normal for members separated for misconduct.  However, it is equally clear his record of misconduct diminished his overall record of service below that meriting a fully HD.  Absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support an upgrade of the applicant's discharge.

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 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)                                         AR20110021102



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ABCMR Record of Proceedings (cont)                                         AR20110021102



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