IN THE CASE OF:	 

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130016651 


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

2.  The applicant states:

	a.  he is in need of medical care and is unable to afford treatment; 

	b.  he is trying to create a better life for himself and his family; 

	c.  prior to his overseas tour, he was enrolled in the Army Drug and Substance Abuse Program which he did not complete because of his military obligations;  

	d.  upon arriving overseas, all the stress and seeing his fellow Soldiers injured and deceased led him back to his addiction; 

	e.  since he left the military he has taken the necessary steps to better himself; 

	f.  the incidents in question were solely his responsibility and he apologizes for his actions to the victims and the U.S. Army; 

	g.  he has enrolled in school and a substance abuse program in order to eliminate his addiction; and

	h.  he has matured tremendously and asked that his request for an upgrade be considered.

3.  The applicant provides two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim).
CONSIDERATION OF EVIDENCE:
1.  The applicant enlisted in the Regular Army on 27 October 2005.  He was trained in and awarded military occupational specialty 92F, Petroleum Supply Specialist.  He deployed to Iraq from 19 June 2006 to 23 April 2007.  

2.  The applicant's records contain a DA Form 4856 (Developmental Counseling Form), dated 4 May 2007, which stated he was returned to the rear detachment from Iraq due to drinking and sexual harassment, which are violations of the Uniform Code of Military Justice and general orders.

3.  On 21 July 2007:

	a.  he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) chapter 14-12b, due to patterns of misconduct.

	b.  he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.

	c.  the applicant's company commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14-12b due to his:

* disobeying a senior noncommissioned officer on 16 November 2006 
* disobeying General Order Number 1, by wrongfully consuming alcoholic beverages on 30 November 2006 and 17 February 2007
* committing an indecent act on a woman not his wife on 24 January 2007
* orally communicating indecent language toward another Soldier on 
24 January 2007
* receiving two field grade Articles 15 before being redeployed from Iraq

4.  On 26 July 2007, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct.  He directed the applicant be furnished an under other than honorable conditions discharge.
5.  On 15 August 2007, the applicant was discharged accordingly.  He completed 1 year, 9 months, and 13 days of creditable active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b with service characterized as under other than honorable conditions.  He was assigned a separation code of JKA and a narrative reason of separation as pattern of misconduct.

6.  On 15 October 2010, the Army Discharge Review Board reviewed all the evidence and factors of the applicant's discharge and denied his request for an upgrade of his discharge in its entirety.

7.  He submitted a VA Form 21-4138, dated 30 May 2013, which contains a personal reference from a Veterans Service Officer indicating the applicant was a productive and outstanding member in his community and work place and requested that his discharge be upgraded so he could obtain health benefits because the applicant suffers from Post-Traumatic Stress Disorder and other health problems associated with his service.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  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 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.

   c.  Paragraph 3-7b 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 contentions that his discharge should be upgraded so he can obtain medical benefits, better his life and support his family are without merit.  Further, there is no evidence of record nor did he provide evidence to show he was engaged in direct combat action or witnessed the deaths of fellow Soldiers during his tour in Iraq.  In addition, there is no evidence of record to show he was in treatment for alcohol abuse. 

2.  The evidence of record shows he received two field grade Article 15's for offenses under the Uniform Code of Military Justice and was separated with an under other than honorable discharge for a pattern of misconduct for drinking and sexual harassment in Iraq.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge under honorable conditions.

3.  The evidence of record shows he was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief.  

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 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)                                         AR20130016651



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ABCMR Record of Proceedings (cont)                                         AR20130016651



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