IN THE CASE OF:	  

		BOARD DATE:  5 June 2012

		DOCKET NUMBER:  AR20110023375 


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 honorable discharge.

2.  The applicant states that the evidence presented was not proven, nor was regulatory policy followed.  He was not given a chance to be rehabilitated.  

3.  The applicant provides excepts from Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14, page 95.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-4, on 25 September 2006, with prior U.S. Navy enlisted service.  He did not complete training for award of a military occupational specialty (MOS).

2.  On 28 August 2007, he was convicted by a special court-martial of one specification each of the following:

* being absent without leave from 20 to 21 December 2006
* willfully disobeying a lawful order from a superior non-commissioned officer (NCO) on 18 January 2007 and 4 May 2007
* being disrespectful in language to a superior NCO on 4 May 2007

3.  He was sentenced to a forfeiture of pay for two months, a reduction to pay grade E-3, and 45 days of hard labor without confinement.  The sentence was approved on 14 December 2007.
4.  On 1 June 2009, the applicant's battalion commander recommended the applicant be separated from the Army as expeditiously as possible and not retained in any capacity.  He stated:

	a.  The applicant was an affable young man, he had yet to become MOS qualified despite entering active duty for this enlistment in September 2006.  The applicant had performed the menial tasks he was assigned to the best of his ability, but in his opinion lacked the drive required to perform valuable service to a Nation at war.

   b.  The applicant had a history of electing trial by courts-martial for the most mundane acts of indiscipline.  While that was his right, by doing that he only served to continue his delay in providing any valuable service to the military.  In a time of war, they needed disciplined Soldiers who were prepared to continue to fight, not go to court-martial over a missed formation.
   
   c.  The applicant was separated via chapter 10 in lieu of court-martial in 1996 during his first period of enlistment.  During his current enlistment he was convicted by courts-martial in August 2007 and again in June 2009.  The applicant had charges pending for a fourth court-martial that was dropped because the chain of command wanted to conserve precious time and resources and believed the Solider would quickly be separated after his most recent court-martial conviction. That pattern of repeated misconduct and abuse of Soldier rights under the Uniform Code of Military Justice (UCMJ) was unacceptable.  

5.  On 3 June 2009, the applicant accepted nonjudicial punishment under Article 15, UCMJ, for:

* willfully disobeying a lawful order from his superior commissioned officer on 8 February 2009
* willfully disobeying a lawful order from an NCO on 18 February 2009
* absenting himself from his unit from 10 to 11 April 2009
* failing to go to his appointed place of duty on 13 April 2009

6.  On 26 June 2009, the applicant received counseling regarding his company commander's decision to initiate action to separate him under the provisions of Army Regulation 635-200, chapter 14, for patterns of misconduct.  The applicant was advised of his rights, the results of the issuance of an honorable, or general, or under other than honorable conditions (UOTHC) discharge, and that requesting an upgrade of any unfavorable discharge received was unlikely.  

7.  On the same day, the applicant acknowledged the proposed separation action.  He requested consideration of his case by an administrative separation board.  He also acknowledged he understood he could be issued a UOTHC discharge and the results of the issuance of such a discharge.  He elected not to submit a statement in his own behalf.

8.  On 6 April 2010, he was advised that he was disqualified for award of the Army Good Conduct Medal for the period 24 September 2006 through 24 September 2009.  He also received counseling as to the reason of disqualification.

9.  On an unspecified date, an administrative separation board found the applicant had committed two serious offenses by disobeying a lawful order from an NCO and from an officer.  The board recommended the applicant be discharged with a UOTHC discharge.  

10.  All the documents surrounding his discharge are not present in the available records.  However, his record contains a DD Form 214 which shows he was discharged in pay grade E-1 on 26 July 2010 under the provisions of Army Regulation 635-200, paragraph 14-12c, for Misconduct (Serious Offense).  His service was characterized as UOTHC.  He was credited with completion of 3 years, 10 months, and 2 days of active service and no time lost during the period under review.

11.  On 8 March 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  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.

13.  Paragraph 14-12c provides for the separation of Soldiers for the commission of a serious offense of misconduct from the harsher penalties that may be imposed under the UCMJ.  The issuance of a discharge UOTHC is normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is 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 will be clearly inappropriate.
15.  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 applicant's contentions have been noted.  

2.  The applicant's record is void of all documents pertaining to his discharge.  However, his available record shows an administrative separation board found he had committed two serious offenses and recommended he be discharged with a UOTHC discharge.  It appears the appropriate separation authority approved and directed his discharge under the provisions of Army Regulation 635-200, chapter 14, as indicated on the DD Form 214 he was issued. 

3.  The available evidence shows the applicant received counseling pertaining to the type of discharges he could receive and results of the issuance of a UOTHC discharge.  At the time of his discharge the issuance of a discharge UOTHC was normally considered appropriate.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his available military records contain no evidence which would entitle him to an upgrade of his discharge.  It appears his misconduct diminished the quality of his overall service below that meriting a general or a fully honorable discharge.

4.  Without evidence, it appears his administrative separation is presumed to have been accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  He provides no evidence or cogent argument to show otherwise.  

5.  Therefore, he is not entitled to the 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)                                         AR20110023375



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023375


5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1