BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120011933 


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 reconsideration of his earlier request for upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* the Board's denial of his request does not make any sense to him
* he never stated he was sorry for anything he did in Iraq
* he does not recall submitting an explanation for his request to upgrade his discharge when he approached M---- S----- for assistance
* he requested to leave the Army because of a pending court-martial
* after serving almost 4 years and earning the rank/grade of sergeant (SGT)/E-5 he was finally accepted to work with the U.S. Army Criminal Investigation Command (CID)
* his commander at Fort Stewart, GA was not very happy about letting him go to the CID
* after working 3 days straight on a case requiring surveillance, he went to visit a friend at Fort Gordon, GA
* while at dinner he had a couple of beers and he was stopped on post for speeding 
* he was never charged with driving under the influence (DUI) or speeding, but was released from the CID
* he requested to leave the Army and received a less than fully honorable discharge
* 
his commander offered to let him stay in the Army as a tanker, but he did not want anything to do with the Army after that
* he never received the counsel that he requested
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 12 May 1995 and he served only 3 years and 4 months

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100030530 on 7 July 2011.

2.  The applicant provides new arguments that were not previously considered by the Board.  Therefore, these arguments warrant consideration by this Board.

3.  In his original application for upgrade of his discharge he states "I made an error in judgment during my service in Iraq, which I attribute to the extremely stressful conditions there during wartime, a lapse which would not have occurred otherwise."  He also states:  "I am homeless, have no income and cannot better myself and access benefits with my current character of service."

4.  The applicant enlisted in the Regular Army on 5 November 1991.  He completed training and he was awarded military occupational specialty 19K
(M-1 Armor Crewman).

5.  His DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  Item 5 (Oversea Service) he served in Germany from 10 May 1992 through 13 November 1993 and in Kuwait from 1 October 1994 through 
31 December 1994.

	b.  Item 9 (Awards, Decorations and Campaigns) shows he was awarded the National Defense Service Medal, Army Achievement Medal (2nd Award), Army Good Conduct Medal (1st Award), Southwest Asia Service Medal, Army Service Ribbon, Oversea Service Ribbon, Driver and Mechanic Badge with Driver-W Bar, and the Expert Marksmanship Qualification Badge with Pistol and Grenade Bars. 

	c.  Item 18 (Appointments and Reductions) he achieved the rank/grade of SGT/E-5, effective 1 March 1994, but he was reduced to specialist (SPC)/
E-4, effective 12 May 1995.

6.  On 11 May 1994, he received a General Officer Memorandum of Reprimand (GOMOR) from the Commanding General of Fort Stewart for DUI, failing to report an accident with damage, and improper backing.

7.  On 3 May 1995, he received a GOMOR from the Commanding General of Fort Stewart for DUI, failing to yield to an emergency vehicle, and failing to stop at a posted stop sign.

8.  On 12 May 1995, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for operating a passenger vehicle while drunk.

9.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 6 June 1995, shows he was barred from reenlistment for receiving two DUI's.  He elected not to submit a statement in his own behalf.

10.  On 31 July 1995, his commander initiated elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for a pattern of misconduct.  The commander cited the reasons for this action were his two DUI's.

11.  On 4 August 1995, he was advised by consulting counsel of the basis for the contemplated separation action and of the impact of the discharge action.  He signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14.  He requested counsel, waived his right to an administrative board, and elected not to submit a statement in his own behalf.

12.  On 7 August 1995, the discharge authority approved the separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct and directed the applicant be issued a General Discharge Certificate. On 5 September 1995, he was discharged accordingly in rank/grade of SPC/E-4. He completed 3 years, 10 months, and 1 day of creditable active service.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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 conviction by civil authorities.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.  There is no available evidence to substantiate the applicant's new arguments.

	a.  He did not specifically state he was sorry for anything he did in Iraq but in his original application he stated, "I made an error in judgment during my service in Iraq...."  Nowhere in his original case was it indicated that he stated he was sorry.

	b.  His original application includes his explanation that was homeless, had no income, and could not access benefits with his current character of service.

	c.  There is no available evidence showing he was pending court-martial or that he performed any service with CID.

	d.  He did not request to leave the Army; he was involuntarily separated due to commission of a serious offense.

	e.  There is no evidence his commander offered to let him stay in the Army as a tanker.

	f.  With respect to his request for counsel, he signed a memorandum, dated 
4 August 1995, wherein he initialed indicating, "I have been advised by my consulting counsel of the basis to the contemplated action to separate me under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, and its affects; of the rights available to me; and the effect of any action taken by me in waiving my rights."

	g.  His DD Form 214 shows he entered active duty on 5 November 1991 and was separated effective 5 September 1995.  This equates to 3 years, 10 months, and 1 day of creditable active duty service. 

2.  The evidence of record shows he received two GOMORs, one Article 15, and a bar to reenlistment.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which is required for the issuance of an honorable discharge.

3.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.  Although an under other than honorable conditions discharge was normally appropriate, it appears the applicant's chain of command considered his overall record of service and discharged him with a General Discharge Certificate.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR20100030530, dated 7 July 2011.



      ________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)                                         AR20110010412



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ABCMR Record of Proceedings (cont)                                         AR20120011933



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