IN THE CASE OF:  

		BOARD DATE:  29 January 2015	  

		DOCKET NUMBER:  AR20140009468 


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 correction of his discharge and upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that his first sergeant verbally abused him by making degrading comments to him and calling him names.  He tried to remain strong and sought the assistance of others in the unit and also the inspector general.  However, no action was taken to correct the situation.  His request for a personal appearance before an administrative separation board was denied and he was discharged shortly after the battalion change of command ceremony.  As a result, the new battalion commander and command sergeant major were not aware of his request and he was unjustly discharged.  He requests a personal appearance before the Board.

3.  The applicant provides no documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered the U.S. Navy (USN) on 27 June 2003 and was separated with a general, under honorable conditions discharge on 20 May 2005 based on a pattern of misconduct.  He had completed 1 year, 10 months, and 24 days of net active duty service during this period.

2.  The applicant enlisted in the Army National Guard (ARNG) of the United States and the New Jersey Army National Guard on 26 September 2006 and he was honorably discharged on 20 February 2007.  He had completed 4 months and 25 days of service during this period.

3.  He enlisted in the Regular Army (RA) on 21 February 2007 for a period of 4 years and 18 weeks.  He then reenlisted in the RA on 21 November 2007 for a period of 5 years.

4.  The applicant was awarded military occupational specialty 92F (Petroleum Supply Specialist).  He served in Iraq from 3 September 2007 to 24 October 2008.  He was promoted to specialist/pay grade E-4 on 27 April 2008.

5.  On 8 July 2008, he accepted nonjudicial punishment (NJP) for, on 3 June 2008, being derelict in the performance of his duties in that he negligently failed to maintain proper weapons arming status by inserting a loaded magazine into the magazine well of an M4 Carbine while in a Containerized Housing Unit with two other Soldiers; a violation of Article 92, Uniform Code of Military Justice.

   a.  He requested a closed hearing and a person to speak in his behalf.  He also indicated that he would present matters in defense, extenuation, and/or, mitigation.

   b.  After having considered all matters presented, the battalion commander found the applicant guilty of all specifications.

   c.  His punishment was reduction to private (PVT)/pay grade E-1; forfeiture of $673.00 pay per month for 2 months; extra duty for 45 days; and oral reprimand.

   d.  The applicant did not appeal the NJP.

6.  On 6 October 2008, the company commander issued the applicant a letter of reprimand for threatening two members of the U.S. Army with bodily harm and death.  The applicant elected not to make a statement.

7.  On 26 May 2009, the company commander notified the applicant that he was recommending him for separation under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Misconduct), paragraph 14-12b, based on a pattern of misconduct.

	a.  The reason for the commander's proposed action was:

* on 8 July 2008, he received NJP for being derelict in the performance of his duties
* on 15 August 2008, he disrespected a noncommissioned officer (NCO) by walking away from him and disobeying an order
* on 15 August 2008, he disrespected a commissioned officer by disobeying his order to stand at attention while speaking to him
* on 7 November 2008, he disobeyed an order issued by a commissioned officer and also an NCO to produce information
* on 12 February 2009, he failed to shave
* on 22 April 2009, he disrespected an NCO by walking away and ignoring all instructions

	b.  He was advised of his rights and the separation procedures involved.  The commander informed him he was entitled to a hearing before an administrative board if he had 6 or more years of active and reserve military service at the time of separation.  He was also advised of his right to consult with consulting counsel and/or civilian counsel at no expense to the Government.

   c.  He was informed that the commander was recommending he receive a general, under honorable conditions discharge.

8.  On 16 June 2009, the applicant consulted with legal counsel and he was advised of the rights available to him.

   a.  He acknowledged, "I understand that if I have 6 years of total active and reserve military service at the time of separation under AR 635-200, 
Chapter [sic] 14-12b (or I have been notified that I am subject to a characterization of service under other than honorable conditions), I am entitled to have my case considered by an administrative separation board.  (I understand that if I have less than 6 years of total active and reserve service at the time of separation, I am not entitled to have my case heard by an administrative separation board unless I am being considered under other than honorable conditions.)"

   b.  He requested:

* consideration of his case by an administrative separation board
* personal appearance before an administrative separation board
* consulting counsel and representation by military counsel and/or civilian counsel at no expense to the Government

   c.  He elected to submit statements in his own behalf.

	d.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

	e.  He acknowledged he understood that if he received a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and States laws, and that he may expect to encounter substantial prejudice in civilian life.

	f.  The applicant and his counsel placed their signatures on the document.

	g.  He submitted a statement in his behalf.  It shows, in pertinent part, he acknowledged that he had a difficult time adapting to his new unit.  He noted that he had been insulted and disrespected by his commander and first sergeant.  He acknowledged that he had a discipline problem and stated it was the reason he joined the military "because I know that the military can help fix it."  He added that he wanted to stay in the military and asked to remain in the Army.

9.  The company commander recommended approval of the applicant's separation for misconduct based on a pattern of misconduct.  The commander's recommendation shows the applicant had completed a mental status evaluation and a medical examination.

10.  The battalion commander recommended approval of his separation with a general, under honorable conditions discharge.

11.  On 26 June 2009, the separation authority approved his discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12b, and directed he be discharged for misconduct based on a pattern of misconduct with a general, under honorable conditions discharge.

12.  The applicant's DD Form 214 shows he was discharged under honorable conditions (general) on 10 July 2009 under the provisions of AR 635-200, paragraph 14-12b, based on a pattern of misconduct.  He had completed 2 years, 9 months, and 15 days of net active service during this period.

13.  On 6 February 2013, the Army Discharge Review Board (ADRB) determined that the reason for the applicant's discharge and the character of his service was both proper and equitable.  Accordingly, the ADRB denied the relief requested by the applicant.



14.  AR 635-200 sets forth the 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 absences 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.  However, the separation authority may direct a general discharge if such is merited by the member's overall records.

	b.  Chapter 3, 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.

15.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR.  An ABCMR panel or the Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be corrected and upgraded because he requested personal appearance before an administrative separation board, but his request was denied; the new battalion commander was not aware of his request and, as a result, he was unjustly discharged.

2.  The evidence of record shows the applicant was entitled to have his case considered by an administrative separation board if he had 6 years of total active and reserve military service at the time of separation or if he had been notified that he was subject to a characterization of service under other than (emphasis added) honorable conditions.  The evidence of record also shows that if he had less than 6 years of total active and reserve service at the time of separation, he was not (emphasis added) entitled to have his case heard by an administrative separation board unless he was being considered for separation under other than (emphasis added) honorable conditions.

3.  The evidence of record shows the applicant completed 1 year, 10 months, and 24 days of active service in the USN; 4 months and 25 days of service with the ARNG; and 2 years, 9 months, and 15 days of active service in the RA.
   
   a.  A computation of the applicant's military service at the time of his separation on 10 July 2009 shows the following:

       01  10  24		USN service
       00  04  25		ARNG service
		+  02  09  15		RA service
		=  03  23 	64		or 5 years, 1 month, and 4 days of total military service 

   b.  Thus, the evidence of record shows he completed 5 years, 1 month, and 
4 days of total military service at the time of his separation.

   c.  The evidence of record shows the company commander notified the applicant he was recommending he receive a general, under honorable conditions discharge (emphasis added).  The battalion commander also recommended he receive a general, under honorable conditions discharge (emphasis added).

   d.  The applicant was separated with a general, under honorable conditions discharge (emphasis added).

   e.  Thus, the evidence of record confirms the applicant was not entitled to personal appearance before an administrative separation board.

   f.  In addition, based on the battalion commander's recommendation on the applicant's administrative separation action, the applicant's contention that the battalion commander was not aware of his request for personal appearance before an administrative separation board is not supported by the evidence of record.

4.  The applicant's administrative discharge under the provisions of AR 635-200, chapter 14, for misconduct based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were both proper and equitable.

5.  During the period of service under review, the applicant committed numerous acts of indiscipline that included disrespect to superior NCOs and commissioned officers, failing to obey orders and instructions, and threatening other Soldiers.  In addition, he received NJP for being derelict in the performance of his duties by inserting a loaded magazine into the magazine well of an M4 Carbine while in a Containerized Housing Unit with other Soldiers and he was reduced to private 
(E-1).  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

6.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

7.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the 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 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)                                         AR20140009468



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ABCMR Record of Proceedings (cont)                                         AR20140009468



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