IN THE CASE OF:	

		BOARD DATE:	    27 August 2014

		DOCKET NUMBER:  AR20130021556 


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, in effect, an upgrade of his general discharge (GD) to an honorable discharge (HD).  He also requests a retrial based on the evidence involved in his summary court-martial (SCM) or that the SCM proceedings be expunged from his military records. 

2.  The applicant states his discharge was inequitable and improper based on the military records and the independent corroborating evidence.  He is requesting an upgrade or a change in the characterization of his service because he applied for educational benefits, vocational rehabilitation, Montgomery GI Bill, and the Post 9/11 GI Bill, and he was denied because he was not eligible.  Although the aforementioned are external, there are internal reasons as well.  He states he is requesting an upgrade of his discharge so that he may be given a second chance and an opportunity through education and training.

3.  The applicant provides multiple self-authored statements, some of which have attached documents including counseling statements, military police reports, and U.S. Army Criminal Investigation Command reports.

CONSIDERATION OF EVIDENCE:

1.  On 20 June 2000, the applicant enlisted in the Regular Army.  The highest rank he held was private/pay grade E-2.

2.  He received developmental counseling on multiple occasions for issues including being apprehended for driving under the influence, failure to obey a lawful order, and being disrespectful toward a noncommissioned officer.

3.  A DD Form 2329 (Record of Trial by SCM) shows at an SCM proceeding on 4 September 2001 the applicant:

* was not represented by counsel
* pled guilty and was found guilty of violating a lawful general regulation involving drunk and disorderly conduct
* pled not guilty and was found guilty of being derelict in the performance of duty (on two occasions), stealing two speakers, approximately 45 music compact discs, and of unlawfully striking Sergeant WMP

4.  On 12 December 2001, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for failing to report to his appointed place of duty and violating a lawful general regulation by drinking underage.

5.  A Report of Mental Status Evaluation, dated 20 December 2001, shows the examiner found the applicant's behavior was normal, that he was mentally responsible, and he was cleared for any administrative actions deemed appropriate by his command.

6.  On 11 January 2002, the applicant's commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c for commission of a serious offense.  He informed the applicant of his rights and that he was recommending separation because the applicant was an accessory to an armed robbery.  The commander indicated he was recommending the applicant be given a GD.  The applicant acknowledged receipt of the notification.

7.  On 14 January 2002, the applicant consulted with counsel who advised him of the basis for the contemplated separation action and its effects; the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a GD were issued to him.  He waived his rights.  He indicated he would submit a statement in his own behalf; however, this statement is not available for review.




8.  On 14 January 2002, the applicant's commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  The reasons he gave for the recommended action were the applicant's:

* dereliction in the performance of duties on two occasions
* larceny of the personal property of Specialist JAA
* underage drinking on two occasions
* unlawfully striking Sergeant WMP
* drunk and disorderly conduct
* accessory to an armed robbery
* failure to report to a unit accountability formation
* being disrespectful in language toward Sergeant JPR
* failure to obey a noncommissioned officer

9.  His commander and an intermediate commander recommended that he given a GD.

10.  On 23 January 2002, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense, and directed the issuance of a GD. 

11.  Accordingly, on 12 February 2002, the applicant was discharged with a GD due to misconduct after completing 1 year, 6 months, and 28 days of net active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 25 days of time lost.

12.  On 10 September 2012, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his GD to an HD.

13.  The applicant provides some background information and multiple additional personal statements, some with attached documents, regarding what he identifies as "different issues."  These are primarily related to his military records and the ADRB Record of Proceedings, dated 10 September 2012.  These statements include comments regarding the following:

* traffic violation documentation related to driving under the influence as an underage person
* not being represented by counsel at his SCM proceedings
* ADRB Record of Proceedings 
* upon arrival at his unit he was "initiated" by being forced to drink a large amount of an alcoholic beverage 
* law enforcement reports related to his possible involvement with robbery in the first degree and assault in the first degree
* his disagreement with his commander's use of "accessory to armed robbery" as a reason for his discharge 
* his disagreement with or perceived flaws in various counseling statements
* his disagreement with or perceived flaws in his NJP proceedings
* alleged erroneous command actions 
* his disagreement with parts of the mental evaluation and alleged inaccuracies contained therein, in part due to alleged improper influence by Staff Sergeant H
* contention that a team leader was not in a position to give him a lawful order

14.  Department of the Army Pamphlet 27-7 (Legal Services - Guide for SCM Trial Procedure) states that the accused at an SCM does not have the right to counsel.  The accused may be represented during the SCM proceedings by a civilian lawyer provided by him at no expense to the government or by a military lawyer if one has been made available for that purpose by competent authority. 

15.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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 for a Soldier discharged under this chapter.  

	b.  An HD 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 has generally met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization is clearly inappropriate.





DISCUSSION AND CONCLUSIONS:

1.  The contentions, issues, and documents the applicant submitted were carefully considered.

	a.  Though he could have been represented during his SCM proceedings by a civilian lawyer provided or by a military lawyer if one has been made available for that purpose by competent authority, there was no requirement that he have counsel.  As such, there is no basis to support his request for retrial involving his SCM conviction or expunging the SCM proceedings from his military records.

	b.  Even if there is no available evidence he was charged with "accessory to armed robbery," there were other sufficient reasons to justify his discharge.

	c.  He has not shown that the military caused him to have a problem with alcohol or that his abuse of alcohol was a contributing factor involving his misconduct that resulted in his discharge.  Further, he has not provided any independent corroborating evidence to show his command's actions were erroneous. 

2.  The applicant was counseled on multiple occasions for issues including being apprehended for driving under the influence, failure to obey a lawful order, and being disrespectful toward a noncommissioned officer.  He received NJP for failing to report to his appointed place of duty and violating a lawful general regulation by drinking underage.  He was also convicted by an SCM of violating a lawful general regulation, drunk and disorderly conduct, being derelict in the performance of duties, stealing two speakers and approximately 45 music compact discs, and unlawfully striking Sergeant WMP.  This record of indiscipline is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The evidence shows he was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  The ABCMR does not grant requests for changes to discharges solely for the purpose of making an applicant eligible for education or other benefits.  Each case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request for upgrade of his GD, a retrial of the evidence in his SCM conviction, or expunging the SCM proceedings from his military records.

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)                                         AR20130021556



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ABCMR Record of Proceedings (cont)                                         AR20130021556



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