BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120009589 


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 upgrade of his general discharge to an honorable discharge and, in effect, a change of his reason for separation to dependency or hardship.

2.  The applicant states he was given emergency leave by his first sergeant to care for his children because of his wife's incarceration from 1-23 July 2009 and the unavailability of anyone else who was able to care for them.  Also, he states he had medical appointments from 20-23 September when he was given a status of absent without leave (AWOL).  He states for this reason he requested a Chapter 6 (Separation Because of Dependency or Hardship) discharge. 

3.  The applicant provides the minutes of an arraignment on a petition revoking probation, back side of a DA Form 4856 (Developmental Counseling Form), medical recommendations, continuation page of nonjudicial punishment, and Medical Command Form 4038 (Report of Behavioral Health Evaluation). 

CONSIDERATION OF EVIDENCE:

1.  His military records show he enlisted in the Regular Army on 5 October 2008.  He did not complete initial training and was not awarded a military occupational specialty.  The highest rank/grade he held was private/E-2.

2.  He received developmental counseling on separate occasions for failure to attend class as ordered and for disobeying a superior commissioned officer.

3.  His records contain a DA Form 4187 (Personnel Action), dated 9 June 2009, which shows he was AWOL effective 9 June 2009.

4.  As part of his counseling on 23 August 2009, he indicated he wanted a Chapter 6 discharge.

5.  A DA Form 4856, dated 25 August 2009, states he was AWOL from 
9-30 June 2009 and from 21-23 August 2009.

6.  He accepted nonjudicial punishment on 1 September 2009 for being AWOL from on or about 9-30 June 2009.

7.  A Medical Command Form 4038, dated 11 September 2009, shows the applicant was seen for a mental status evaluation as part of an examination for administrative discharge from the Army.  The report states he had a complicated bereavement following the death of his uncle, a person who effectively acted as his father, which resulted in an agitated depression.  The report shows he met the retention requirements of Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and that he was psychiatrically cleared for any administrative action deemed appropriate by the command.

8.  He submits documents related to an arraignment on a petition revoking probation, dated 2 July 2009, and a hearing on a petition revoking probation, dated 23 July 2009, of a person he alleges to be his wife.  He indicates on these documents that she was arrested on 1 July and released on 23 July 2009.

9.  On 5 October 2009, the applicant's commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for commission of serious offenses.  The reasons for his proposed action were that the applicant was AWOL on or about 9-30 June 2009 and on or about 20-23 August 2009.  On 3 September 2009, he received a Field Grade Article 15 for being AWOL from 
9-30 June 2009.  On or about 1 September 2009, he was ordered by Captain JAB to report to the orderly room at 1700 Hours for extra duty, every day during the 45 days' extra duty imposed by the Commander, 16th Ordnance Battalion, an order which he refused to obey.  On 8 September 2009, he failed to obey an order given by 2nd Lieutenant T to attend class.  He was advised of his rights.

10.  On 5 October 2009, he was advised by consulting counsel of the basis for the contemplated action to separate him for commission of serious offenses under Army Regulation 635-200, paragraph 14-12c and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were given a general discharge.  He chose not to submit a statement in his own behalf.  He waived his rights in conjunction with this consultation.

11.  The separation authority approved his discharge.

12.  On 9 October 2009, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(1).  He was given a general discharge.  He was assigned a reason for separation of misconduct (AWOL).  The DD Form 214 he was issued shows he completed a total of 1 year and 7 days of creditable active service with 22 days of time lost.

13.  On 22 November 2011, the Army Discharge Review Board denied his request for an upgrade of his general discharge.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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.  Action will be taken to separate a Soldier 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.

15.  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.

16.  Army Regulation 635-200, Chapter 6, provides that Soldiers on active duty may be discharged or released because of genuine dependency or hardship.  Dependency exists when death or disability of a member of a Soldier’s (or spouse’s) immediate family causes that member to rely upon the Soldier for principal care or support.  Hardship exists when in circumstances not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions, in effect, that he wasn't AWOL because he was given emergency leave to care for his children because of his wife's incarceration from 1-23 July 2009 and the unavailability of anyone else who was able to care for them and that he had medical appointments from 20-23 September when he was given a status of AWOL are noted.  However, his military records show he was separated for commission of the serious offenses of being AWOL from on or about 9-30 June 2009 and 20-23 August 2009, and for refusal to obey orders from two different commissioned officers on two separate occasions.

2.  He indicated on a counseling form that he wanted a dependency or hardship discharge.  The Army has policies and procedures to deal with hardships.  However, there is no evidence to show he properly requested assistance or separation because of genuine dependency or hardship.  He had many legitimate avenues such as a chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers through which to obtain assistance or relief, without committing the misconduct which led to his separation.

3.  He was discharged by reason of misconduct (AWOL).  The evidence of record confirms his AWOL status.  There is no evidence of error in the assignment of his reason for separation of misconduct (AWOL).

4.  His separation processing was accomplished in accordance with the applicable regulation.  Evidence indicates all requirements of law and regulation were met and his rights were protected throughout the separation process.  Based on his commission of serious offenses, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  A general discharge would have been warranted based on his misconduct.

5.  In view of the above, there is no basis to upgrade his general discharge to an honorable discharge or to change his reason for separation.

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)                                         AR20120009589



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ABCMR Record of Proceedings (cont)                                         AR20120009589



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