IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140008486 


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.

2.  The applicant states:

   a.  At the time of his discharge his fiancé was pregnant with their daughter.  His daughter was his first child and the pregnancy added a lot of stress.  He was unmarried and received a lot of criticism due to that.  At the time of his nonjudicial punishment (NJP) he had served for 6 1/2 years with 2 deployments to Iraq and Afghanistan. 

   b.  He worked tirelessly for the U.S. Army and gave everything he had to the Army.  He received an Article 15 for being absent without leave (AWOL) for 4 days after an altercation with a staff sergeant (SSG) in his platoon because the SSG criticized and ridiculed him and his fiancé by calling both of them names.  He needed to get away from the SSG before he lost his temper.  He informed his squad leader that he was leaving to get away before it escalated into a worst situation.  He stated that he would be gone for 4 days to travel with his fiancé to see her family.  He was not advised that he couldn't go.  He had his cell phone on him for those 4 days and he did not receive any communication telling him that he needed to return.

   c.  After returning, he was informed that he had been AWOL.  His lifelong dream was to serve until retirement.  His life plan was to do exactly that.  He needs an upgrade so the recruiters can apply for a waiver.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA), in pay grade E-2, on 6 October 2005.  He was awarded military occupational specialty 11B (infantryman).  He reenlisted in the RA on 20 November 2007 for 6 years.  He served in Iraq from 8 August 2007 through 24 October 2008.  He was promoted to pay grade E-5 on 1 February 2009.

2.  He served in Afghanistan from 3 June 2010 through 1 March 2011.

3.  On 2 March 2011, a bar to reenlistment was initiated against the applicant for having sexual relations with one of the engineers stationed at the Forward Operating Base in Afghanistan.  She had since claimed she was pregnant with the applicant's child.  The applicant was still married to his wife who was back at Fort Campbell and they had 2 children.

4.  On 1 April 2011, a Report to Suspend Favorable Personnel Actions was initiated against the applicant for adverse action.

5.  On 3 June 2011, he accepted nonjudicial punishment under Article 15, UCMJ, for wrongfully having sexual intercourse with a woman not his wife on 8 March 2011.  His punishment included a reduction to pay grade E-4 (suspended to be remitted if not vacated by 2 July 2012), a forfeiture of $1,224.00 pay for 2 months (suspend $1,224.00 pay for 1 month to be remitted if not vacated by 2 July 2012), and 45 days of extra duty.  He did not appeal.

6.  He received counseling between 3 and 7 March 2012 for:

   a.  The missed appointment policy.
   
   b.  Being AWOL on 1 March 2012 and failing to go to his appointed place of duty.

   c.  Making a false statement to a senior noncommissioned officer (NCO) about events that occurred on 1 March 2012 in that he informed the NCO that his mother had been assaulted and was on her way to the hospital.  The applicant called and informed the sergeant major (SGM) that his mother's house had been broken into, she was assaulted, and he gave a name of a hospital his mother was taken to.  The SGM did a search for the name of the hospital and he found no hospital with that name.  Upon further investigation it was found that the applicant's mother was not harmed in a home invasion.  Once the applicant returned, he openly admitted in a sworn statement that he went to Virginia with his girlfriend.

7.  On 27 April 2012, the applicant’s company commander initiated action against the applicant to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense, with a general discharge.  He stated the reasons for the recommended action were the applicant's failure to go to his appointed place of duty, being AWOL from 1 to 6 March 2012, making a false statement to a senior NCO, and wrongfully having sexual intercourse with a woman not his wife.  He also stated the applicant had been reduced to pay grade E-4 on 2 April 2012.  He advised the applicant of his rights.

8.  On 27 April 2012, the applicant acknowledged receipt of the proposed separation, waived his right to counsel, and did not submit a statement in his own behalf.

9.  On 27 April 2012, the applicant's battalion commander recommended approval of the applicant's discharge with a general discharge.

10.  On 27 April 2012, the separation authority approved the applicant’s discharge.

11.  He was discharged accordingly in pay grade E-4 on 9 May 2012.  He was credited with completing 6 years, 6 months, and 28 days of net active service.  His service was characterized as under honorable conditions, general.

12.  On 17 January 2014, the Army Discharge Review Board denied his request for an upgrade of his general discharge.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  The regulation states in:

   a.  Paragraph 14-12c – Soldiers will be separation for the commission of a serious offense to include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions is normally considered appropriate; however, a general, under honorable conditions, or an honorable discharge may be granted.


   b.  Paragraph 3-7a - an honorable discharge is a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's company commander initiated a bar to his reenlistment and subsequent action to separate him for failing to go to his appointed place of duty, absenting himself from 1 to 6 March 2012, making a false statement to a senior NCO, and wrongfully having sexual intercourse with a woman not his wife.  The applicant's battalion commander recommended approval of the discharge and directed the issuance of a general discharge.  The separation authority approved his discharge and he was discharged accordingly on 9 May 2012.

2.  He provided no evidence or a convincing argument to show his general discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct between March 2011 and March 2012 diminished the quality of his service below that meriting a fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his general discharge.

4.  His desire to have his general discharge upgraded so that he can reenter military service is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for reenlistment.

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)                                         AR20140008486





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ABCMR Record of Proceedings (cont)                                         AR20140008486



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