IN THE CASE OF:	   

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110021601 


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 honorable
* entitlement to the Montgomery GI Bill (MGIB)
* remittance of the debt for his enlistment bonus

2.  The applicant states:

* he was treated unfairly by a sergeant
* the sergeant wrote him up numerous times for unfair reasons and being tardy because he had to walk to the motor pool 
* he participated in the MGIB
* he was asked if he wanted to be discharged since he was not being the best he could be
* he wasn't told he wouldn't get the MGIB or that he would have to repay his enlistment bonus  

3.  The applicant provides:

* discharge orders
* three letters of recommendation
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)


* DD Form 2366 (MGIB Act of 1984)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 5 March 1998 under the Delayed Entry Program.  A DD Form 2366 (MGIB Act of 1984) shows he was automatically enrolled in the MGIB effective 5 March 1998.  This form states, "I must receive an honorable discharge for service establishing entitlement to the MGIB."

2.  He was discharged from the U.S. Army Reserve and enlisted in the Regular Army on 10 June 1998 for a period of 4 years.  He enlisted for the U.S. Army Cash Bonus Incentive ($12,000).  Item 5a(3) (Statement and Conditions Which Apply to ALL Incentive Programs) of his DA Form 3286-66 (Statement of Understanding – U.S. Army Incentive Enlistment Program), dated 10 June 1998, states, "I must stay qualified in my incentive military occupational specialty (MOS) for the duration of my initial enlistment, unless otherwise directed by Headquarters, Department of the Army."

3.  He completed training and was awarded MOS 11M (fighting vehicle infantryman).

4.  Between 21 April 1999 and 7 December 1999, he was counseled for:

* missing formations
* failing to report to his appointed place of duty
* failing to obey a lawful order
* displaying insubordinate conduct
* failing to follow a direct order
* making a false statement

5.  On 8 November 1999, nonjudicial punishment (NJP) was imposed against him for drunk driving.

6.  On 12 December 1999, NJP was imposed against the applicant for failing to report on repeated occasions to the accountability formation.

7.  On 25 February 2000, discharge proceedings were initiated under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct) for:

* grossly disregarding Army rules and regulations and becoming a disruptive influence
* driving while drunk
* being drunk and disorderly
* repeatedly failing to go to his appointed place of duty
* violating several other regulations

8.  He consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued to him.  He elected not to submit a statement on his own behalf.

9.  On 25 February 2000, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  He was discharged under honorable conditions (a general discharge) on 30 March 2000 under the provisions of Army Regulation 635-200, paragraph 
14-12b, for misconduct (pattern of misconduct).  He completed a total of 1 year, 9 months, and 21 days of creditable active service.

11.  On 27 September 2011, the Army Discharge Review Board denied his request for an honorable discharge.

12.  The applicant provides three letters of recommendations from employers who attest that the applicant is a good employee, reliable, helpful, neat, clean, and has excellence attendance.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribed 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.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

14.  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 letters submitted on behalf of the applicant fail to show his discharge was unjust and should be upgraded.

2.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

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

4.  His record of service included numerous adverse counseling statements and two NJPs.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an honorable discharge.

5.  Since the applicant did not receive an honorable discharge, he is not entitled to the MGIB in accordance with his DD Form 2366.

6.  His enlistment contract required him to remain qualified for the duration of his initial enlistment for entitlement to the cash bonus.  Since he did not serve for the duration of his enlistment, he is obligated to repay his cash bonus.  Therefore, there is no basis for granting the applicant's request to remit the debt for his enlistment bonus.

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)                                         AR20110021601



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ABCMR Record of Proceedings (cont)                                         AR20110021601



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