BOARD DATE: 5 February 2014
DOCKET NUMBER: AR20130009723
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 general discharge to an honorable discharge.
2. The applicant states:
a. He believes his discharge is based on one incident and not his entire service record. Despite his previous character and job performance as a noncommissioned officer, as well as achievements which include a nomination for award of the Silver Star, he was directed to receive a general under honorable conditions discharge.
b. He accepted his discharge instead of going to a separation board because his chain of command recommended that he do so. They made the process much longer than it needed to be which resulted in undue hardship on his family. The incident occurred on 1 October 2010, he signed paperwork with trial defense services on 15 March 2011, and his chain of command continued delaying the separation board over the following six months. Ultimately, in September 2011, he waived the board and accepted a general discharge due to the unnecessary longevity of the situation and the toll it was taking on himself and his family.
c. He asks the Board to review the entire breadth of his service when considering his application. He understands he was wrong and is solely responsible for the incident, but he submits that it is not reflective of his overall service to the Army. He currently lives in his hometown with his wife of 11 years, coaches youth football, goes to church, and attends Department of Veterans Affairs (VA) meetings for his own benefit and to help other veterans. He is gainfully employed in a position of great responsibility which he could not have succeeded in without the years of training and experience afforded him in the Army.
3. The applicant provides:
* a self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 3 letters of support
* 3 DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)
* Narrative to Accompany Award of the Silver Star
* Citation to Accompany Award of the Silver Star
* 4 DA Forms 638 (Recommendation for Award)
* 3 pages of supporting documentation for award of the Silver Star
* 4 DA Forms 2823 (Sworn Statement)
* 4 DA Forms 4980-14 (Army Commendation Medal Certificate)
* 2 memoranda
* 4-page mental health assessment
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests the applicant receive an honorable discharge.
2. Counsel states he has known the applicant for many years and was his battalion commander in the Oregon Army National Guard. He states he is now a brigadier general and Assistant Adjutant General for the Oregon Army National Guard. He expresses his sincere appreciation for the applicant's outstanding service and requests the Board's highest consideration in granting the applicant an honorable discharge.
3. Counsel provides a self-authored letter of recommendation on behalf of the applicant.
CONSIDERATION OF EVIDENCE:
1. Having prior service in the Oregon Army National Guard, the applicant enlisted in the Regular Army on 4 November 2003, in military occupational specialty 11B (Infantryman).
2. Evidence shows he deployed twice to Afghanistan and once to Iraq. The highest rank/grade he attained during his military service was staff sergeant/E-6.
3. The applicant's record contains a Military Police Report Number that shows the applicant was titled for the following previous offenses on:
* 8 May 2004, for drunk and disorderly conduct and two civilian charges of insult
* 23 March 2006, for failing to obey a regulation, false swearing, and false official statement
* 1 December 2007, for drunk and disorderly
* 13 July 2008, for assault, endangering the welfare of a child, domestic disturbance, and spouse abuse
4. On 3 December 2010, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following charges committed on 1 October 2010: drunk and disorderly, six specifications of assault, three specifications of wrongfully communicating a threat, resisting apprehension, and conduct prejudicial to good order and discipline.
5. On 15 March 2011, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, chapter 14 for misconduct - commission of a serious offense. The commander recommended an honorable characterization of service.
6. On 15 March 2011, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him. He requested an administrative separation board; however, he did not submit a statement in his own behalf.
7. On 10 August 2011, he again consulted with legal counsel and was advised of the impact of the discharge action. He voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions and he did not submit statements in his own behalf.
8. The separation authority approved the applicant's discharge under Army Regulation 635-200, paragraph 14-12c, and directed that he be given a general discharge. On 6 October 2011, the applicant was discharged accordingly. The DD Form 214 he was issued confirms he was separated for misconduct (serious offense). He completed 7 years, 11 months, and 3 days of active military service this period with no time lost.
9. On 20 July 2012, the Army Discharge Review Board denied his petition for an upgrade of his discharge.
10. The applicant provides letters of recommendation and support from his spouse, counsel, and a licensed clinical social worker in support of his application. He also provides copies of evaluation reports, awards, and a recommendation for award of the Silver Star which reflect periods of his exemplary service.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct - commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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.
12. 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's request to upgrade his general discharge to an honorable discharge has been carefully examined.
2. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and that his rights were fully protected throughout the separation process.
3. The applicant contends that he was unfairly discharged as a result of a single incident; however, evidence contained in the applicant's record shows that while this appears to be the only time he received NJP under the provisions of Article 15 of the UCMJ, he was titled by the military police for numerous offenses from 2004 to 2008.
4. Notwithstanding his periods of exemplary service and achievements, based on his record of indiscipline his overall 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.
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) AR20130009723
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