IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120011717 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states, in effect, that the Army and the Army Discharge Review Board (ADRB) did not consider or investigate his statements, mental health, or veteran’s status impartially at the time of his discharge or on his discharge review. 

3.  The applicant provides a six-page brief of his case, a copy of the ADRB Case Report and Directive and documents related to his application to that board, and documents related to his treatment and incarceration in the Federal prison system. 

CONSIDERATION OF EVIDENCE:

1.  The applicant initially served in the Alabama Army National Guard from 
30 November 2000 until he was honorably discharged on 10 June 2001.  He enlisted in the Regular Army in the pay grade of E-3 on 11 June 2001 for a period of 6 years, training as a power generator repairer, assignment to Fort Campbell, Kentucky, and a cash enlistment bonus.

2.  He completed his training and was transferred to Fort Campbell for his first and only duty assignment.  

3.  On 20 November 2002, nonjudicial punishment was imposed against him for six specifications of failure to go to his place of duty and one specification of disobeying a lawful order from a superior noncommissioned officer.

4.  The applicant deployed to Iraq with his unit on 6 March 2003.  On 28 April 2003 was caught trying to sodomize another Soldier in the barracks.  He admitted to the act and claimed that it was concensual on both parts.  However, an investigation was conducted and it appears the victim woke up and hit the applicant in the head with a flashlight and required four stitches above his eye.

5.  He departed Iraq on 17 June 2003 and returned to Fort Campbell.  On 
29 October 2003, NJP was imposed against him for attempting to sodomize another Soldier on 28 April 2003.

6.  The applicant underwent a mental status evaluation and was deemed mentally responsible and was cleared for an administrative action deemed appropriate.

7.  On 6 November 2003, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulations 635-200, paragraph 14-13c, due to misconduct.  He cited as the basis for his recommendation the applicant’s disciplinary record and his failure to respond to repeated counseling sessions.  

8.  After consulting with counsel, the applicant waived all of his rights and elected to submit a statement in his own behalf whereas he asserted that he had done a good job in performance of his assigned duties.

9.  The appropriate authority approved the recommendation for discharge on    11 December 2003 and directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions on  29 December 2003 under the provisions of Army Regulation 635-200, paragraph  14-12c, due to misconduct.  He had served 2 years, 6 months, and 19 days of active service.

11.  The applicant applied to the ADRB in May 2010 requesting an upgrade of his discharge.  He contended at that time that his discharge was inequitable because it was based on an isolated incident in 36 months of service.  He also stated that he was punished and had lived in shame for 7 years.  He also stated that he was undergoing psychotherapy and requested that the Record of Proceedings under Article 15 (DA Form 2627) that was part of his separation packet be removed from his records as it prevented him from receiving benefits that would help him overcome his disease.

12.  On 9 February 2011, after reviewing the available evidence in his case, the ADRB found that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge. 

13.  The applicant is currently incarcerated in a Federal prison for bank robbery and is being treated for Bipolar Disorder and Adjustment disorder with depressed mood.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

15.  Paragraph 3-7b of Army Regulation 635-200 provides that 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the characterization of his service was appropriate for the circumstances of his case.

3.   The applicant’s contention that the Army and the ADRB did not take properly consider all of the facts in his case has been noted and appears to lack merit. The applicant was afforded the opportunity to submit matters in his own behalf and he did so.  

4.  Inasmuch as the Board is not an investigative agency, it must be presumed that the commander on the ground at the time was aware of the applicant’s performance and conduct at the time.  Additionally, the applicant has failed to show through the evidence submitted with his application and the evidence of record that his misconduct was caused by his present illnesses or that he was not properly discharged. 

5.  In view of the foregoing, there is no basis for granting the applicant's request for an honorable 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 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)                                         AR20120011717





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ABCMR Record of Proceedings (cont)                                         AR20120011717



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