IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021966 


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 general discharge be upgraded to honorable.

2.  The applicant states he is a veteran who excelled, he was a selected to attend the Basic Noncommissioned Officers Academy prior to his departure from the military, and he was promoted to the rank of sergeant.  An unfortunate incident changed the course of his life and he is still dealing with it.  After leaving the military he found employment with several different construction companies.  In 2006, he found permanent employment with a precast company.  However, when the economy crashed he was let go in 2009.  He immediately went back to school to obtain his bachelor's degree.  He successfully achieved an associate's degree.  He was in his last year of school when he was forced to take a break.  According to the University of Phoenix, he had exhausted his Montgomery GI Bill educational benefits.  He qualifies for the Post 9/11 GI Bill.  But, he does not have an honorable characterization of service; therefore, he cannot receive those funds, finish school, and salvage his life.  He has been working odd jobs to make ends meet and to raise his three sons.  He would like a chance at a career and the ability to provide for his family.  He has not been in any trouble with the local, state, or federal law enforcement.  Despite his struggles, he has continued to show himself as a model citizen and father.  He is just asking for an upgrade of his discharge so that he might have a chance to make a difference for his family and himself.

3.  The applicant provides no additional documentary evidence.


CONSIDERATION OF EVIDENCE:

1.  On 22 April 1994, the applicant enlisted in the Regular Army.  On 17 May 2000, he was promoted to the rank of sergeant, pay grade E-5.

2.  On 23 December 2001, the applicant was arrested for an alleged incident outside of the barracks involving a physical altercation with a female.  He allegedly displayed a loaded weapon and made verbal threats to the female.  When the military police arrived they searched the applicant's privately owned vehicle and found a loaded weapon.  An authorized search of the applicant's room found a small amount of marijuana.  He was taken into custody and charged with violation of post privately-owned weapons regulations, assault, making a verbal threat, interfering with an emergency call, and simple possession.  The unit suspended his off-post privileges and initiated hourly sign-in procedures.

3.  On 5 March 2002, the applicant accepted nonjudicial punishment for the offenses discussed in the preceding paragraph.

4.  On 6 March 2002, at a mental status evaluation, the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal and his memory good.  He had the mental capacity to understand and participate in the proceedings.

5.  On 18 March 2002, the applicant's company commander notified the applicant of his intent to initiate action to separate him due to the commission of a serious offense; specifically, committing a simple assault, failing to register a firearm, interfering with an emergency call, communicating a threat, and the wrongful use and possession of marijuana.  The applicant acknowledged receipt of this notification.

6.  On 18 March 2002, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for the commission of a serious offense as stated in the preceding paragraph.  The commander stated the applicant clearly had no potential for useful service under conditions of full mobilization.  The applicant would be a danger to those around him due to the hazardous nature of the missions for which the unit would be responsible.

7.  On 22 March 2002, the applicant, after consulting with counsel, offered to voluntarily waive consideration of his case by an administrative separation board provided he received no less than a general characterization of service.
8.  On 27 March 2002, the Administrative and Civil Law Division reviewed the applicant's administrative separation packet and found it to be legally sufficient.  However, the case appeared appropriate for court-martial and recommended that the commander consult with trial counsel about the possibility of preferring charges.

9.  On 5 April 2002, the battalion commander recommended the applicant be separated under the provisions of chapter 14, Army Regulation 635-200, with an under other than honorable conditions discharge.

10.  On 11 April 2002, the brigade commander approved the recommendation and recommended the applicant receive an under other than honorable conditions discharge.

11.  On 30 April 2002, the Chief, Patient Administration Division, requested a decision from the Commander exercising general court-martial jurisdiction over the applicant concerning the applicant not meeting medical retention standards and appearance before a physical evaluation board (PEB).

12.  On 18 May 2002, the Commanding General disapproved the applicant's request for a conditional waiver.  The applicant's separation action was referred for a hearing before the Standing Administrative Separation Board.

13.  On 1 July 2002, the applicant acknowledged receipt of his notification to appear before an Administrative Separation Board.

14.  At 1326 hours, on 8 August 2002, the Administrative Separation Board convened.  The applicant and his counsel were present for all open sessions of the board.  At 1645 hours the same day, the board adjourned.

15.  The board found that the allegations of simple assault, communication of a threat, and use of marijuana were not supported by a preponderance of the evidence.  It further found that the allegations of failing to register a firearm and possession of marijuana were supported by a preponderance of the evidence.  Two of the three board members stated the findings did not warrant separation with respect to the commission of a serious offense.

16.  The board recommended the applicant be separated with a general characterization of service.

17.  On 16 September 2002, the Staff Judge Advocate (SJA) found the board proceedings legally sufficient, with no apparent material errors in the record that would have prejudiced any right of the applicant.  The SJA noted that the applicant had been recommended for disability processing by a medical board.  The SJA advised the commander that he may approve processing under the disability system and order a PEB for the applicant if he found that his medical condition was the direct, or substantial, cause of the misconduct.

18.  On 17 September 2002, the commander found that the applicant's misconduct as outlined in the separation packet was not the direct or substantial result of his medical condition.  He found no other circumstances in the individual's case that would warrant disability processing.  Therefore, he would not be processed through medical channels.  The commander approved the findings and recommendations of the Administrative Separation Board and directed his separation with a general characterization of service.

19.  On 18 October 2002, the applicant was accordingly discharged.  He had completed 8 years, 5 months, and 27 days of creditable active service.

20.  On 22 March 2013, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  After careful examination of the applicant's record of service, the ADRB determined his discharge was proper and equitable and denied his request.

21.  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 commission of a serious offense that could result in a punitive discharge.  Action will be taken to separate a member 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.

22.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to honorable so he may obtain Post 9/11 GI Bill benefits.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Based on his indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  The applicant's desire to obtain veterans educational benefits is not justification for upgrading his 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)                                         AR20120021966



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ABCMR Record of Proceedings (cont)                                         AR20120021966



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