IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120006442 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states he was going through a terrible divorce that caused issues with his career at the time of his discharge.  He has since enrolled in college to obtain his bachelor's degree in business management.  He is also an engineer with his current employer and is providing a letter from the local chief of police.  His reentry eligibility (RE) code was previously changed from RE 4 to RE 3.  He wants his discharge upgraded so he can reenter the military without seeking a waiver.  He served his first 4 years honorably and wants to reenter the military to have the chance to finish his second term in the same manner and provide for his children.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a student program audit report, and a letter of recommendation.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 10 January 2001 and he held military occupational specialty 18E (Special Forces Communications Sergeant).

2.  On 6 October 2006, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following:

* disobeying a lawful order
* signing a false travel voucher with the intent to deceive
* forging a supervisor's signature on a travel voucher for the purpose of obtaining the approval and payment of a claim

3.  On 22 March 2007, he received NJP under the provisions of Article 15, UCMJ, for the following: 

* failing to go to his prescribed place of duty on 30 October 2006
* failing to go to his prescribed place of duty on 5 December 2006
* having an improper relationship with a female while married on or about 11 and 18 December 2006
* making a false official statement with the intent to deceive on or about 15 December 2006

4.  On 26 June 2007, his immediate commander notified him of his intent to initiate separation action against him for misconduct – patterns of misconduct – under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b.  Specifically, he cited the applicant's two Article 15's for disobeying a lawful order, signing a false travel voucher, forging a supervisor's signature, having an improper relationship, making a false official statement, and failing to go to his prescribed place of duty on numerous occasions.  The commander stated he was recommending a discharge under other than honorable conditions.

5.  On 26 June 2007, the applicant acknowledged receipt of the commander's intent to separate him.  He further acknowledged that he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He waived his rights to consult with military counsel and to have his case heard by an administrative separation board and he declined to submit a statement on his own behalf.

6.  On 28 June and 16 July 2007, respectively, his intermediate and senior commander recommended approval of the discharge action with the issuance of an under other than honorable conditions character of service.

7.  The separation authority subsequently approved his discharge by reason of a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, with an under other than honorable conditions character of service.  On 14 August 2007, he was discharged accordingly.

8.  His DD Form 214 shows he was discharged for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, with an under other than honorable conditions character of service.  He completed 6 years, 7 months, and 5 days of net active service.

9.  On 19 March 2010, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.  However, it noted the RE code on his DD Form 214 was incorrect and voted to administratively correct it from "4" to "3."  His DD Form 214 was administratively reissued on 5 May 2010 with the correct RE code.

10.  The applicant provided a student program audit report, dated 28 March 2012, issued by the University of Phoenix wherein it shows he is enrolled in the University of Phoenix Bachelor of Science in Business program and has a 3.20 grade point average.

11.  He also provided a letter of recommendation from the Chief of Police, Arvin Police Department, Arvin, CA, dated 6 January 2012, wherein the police chief recommends the applicant for acceptance into the officer candidate school program.  He states the applicant is a student in his criminal justice class, is an outstanding student, has an aptitude for prioritizing tasks, and has demonstrated positive leadership in working with his fellow students.

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, and abuse of illegal drugs.  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 be issued if such is merited by the Soldier's overall record.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on two occasions for disobeying lawful orders, signing a false travel voucher, forging a supervisor's signature, having an improper relationship, making a false official statement, and failing to go to his prescribed place of duty on numerous occasions.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he engaged in a pattern of misconduct during his service.

4.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20120006442



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ABCMR Record of Proceedings (cont)                                         AR20120006442



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