IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140018121 


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 reconsideration of his earlier request for an upgrade of his general discharge to a fully honorable discharge. 

2.  As a new issue, the applicant requests restoration of his rank/pay grade to specialist four (SPC)/E-4.

3.  The applicant states he is requesting his records be reviewed for an honorable discharge and restoration of his rank to SPC/E-4.  Something happened during his second reenlistment; however, he cannot explain what happened.  All he knows is something started falling apart.

4.  The applicant provides:

* College transcripts
* Federal Aviation Administration Mechanic Certificate
* Diploma, Bachelor of Science in Professional Aeronautics
* X-ray of a brain

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110013239, on 15 December 2011. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was not received within one year of the original Board's decision.  However, his new issue is directly related to the overall service and separation.  As a one-time exception, the characterization of service will be reconsidered by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 23 February 1999.  He was trained in and held military occupational specialty (MOS) 63S (Heavy Wheel Vehicle Mechanic). 

4.  He served at Schofield Barracks, HI, between 1999 and 2002.  His exact dates of service are unknown.  He was assigned to the 25th Aviation Brigade.  He was promoted to SPC/E-4 on 1 October 2001.  

5.  He executed a 4-year reenlistment on 6 November 2002.  He reenlisted for training in MOS 15Y (AH-64 Armament/Electrical/Avionics Systems Repairer).  He completed 32 weeks of training in this specialty in 2003. 

6.  He was assigned to the 1st Battalion, 101st Aviation Regiment, Fort Campbell, KY.  While there, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ): 

	a.  On 27 July 2004, for four counts of failing to go at the time prescribed to his appointed place of duty and one count of dereliction in the performance of his duties (found asleep on duty).  His punishment consisted of restriction, extra duty, and a reprimand.  He elected not to appeal. 

	b.  On 4 May 2005, for three counts of failing to go at the time prescribed to his appointed place of duty and one count of dereliction in the performance of his duties (failing to stay awake on duty).  His punishment consisted of reduction from pay grade E-4 to private first class (PFC)/E-3, extra duty, restriction, and a reprimand.  He elected not to appeal.

7.  His records show he was frequently counseled by various members of his chain of command for various infractions, including: 

* missing movement 
* failing to follow orders
* having an unclean barracks room 
* failing to follow instructions
* missing formations
* disobeying orders
* multiple instances of being late to formation
8.  On 20 May 2005, his chain of command initiated a Bar to Reenlistment Certificate against him citing continued misconduct.  He was provided a copy of this bar and submitted a statement on his own behalf.  He acknowledged his misconduct and poor performance and indicated he would work harder.  The approval authority ultimately approved the bar. 

9.  He served in Iraq from 5 September to 26 December 2005.  While in Iraq, on 25 November 2005, he accepted NJP under the provisions of Article 15 of the UCMJ for two counts of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction to private (PV2)/E-2 and a reprimand.  He elected not to appeal. 

10.  On 8 December 2005, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, for misconduct – pattern of misconduct.  The specific reasons are cited as the multiple instances of missing formation, failing to be at his appointed place of duty, dereliction of duty, and multiple incidents of misconduct.  He recommended the issuance of an under other than honorable conditions discharge. 

11.  On 12 December 2005, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and/or a personal appearance before a separation board.  He also submitted a conditional waiver, wherein he waived consideration of his administrative separation board and/or appearance before such board contingent on receiving an under honorable conditions (general) characterization of service. He acknowledged he understood that:

	a.  He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

	b.  He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

12.  Subsequent to this acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation      635-200, paragraph 14-12b, for a pattern of misconduct.  

13.  On 13 December 2005, the battalion commander recommended approval of the separation action with the issuance of an under other than honorable conditions.  

14.  On 17 December 2005, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct with an under honorable conditions (general) characterization of service.  On 6 January 2006, the applicant was accordingly discharged.  

15.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (pattern of misconduct) with an under honorable conditions (general) characterization of service.  He completed
6 years, 10 months, and 4 days of net active service this period.  The DD Form 214 also shows in:

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) – PV2 and E-2 
* Item 12h (Effective Date of Pay Grade) – 25 November 2005 

16.  On 8 February 2011, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

17.  On 15 December 2011, the ABCMR reviewed his discharge and also found it proper and equitable.  The ABCMR denied his petition for an upgrade of his discharge. 

18.  He provides: 

	a.  College transcripts and a diploma showing award of a Bachelor of Science in Professional Aeronautics.

	b.  Federal Aviation Administration Mechanic Certificate.

	c.  X-ray of a head.

19.   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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  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 discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct.

	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.

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states items 4a and 4b, obtained from the Soldier's record, shows the active duty rank and pay grade at the time of the Soldier's separation and Item 12h shows the effective date of the Soldier's pay grade.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the character of service: 

	a.  The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his multiple incidents of failing to repair, missing formations, receiving NJP, dereliction of duty, other misconduct, and extensive history of negative counseling.  Accordingly, his chain of command initiated separation action against him.

	b.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

	c.  Based on his record of indiscipline, his service for the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis or granting the applicant an honorable discharge.

2.  With respect to his rank/grade:

	a.  The evidence of record shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ on 25 November 2005.  His punishment consisted of, among other things, a reduction to PV2/E-2.  He held this rank/grade until his discharge on 6 January 2006.    

	b.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was given the right to demand trial by court-martial and he was afforded the opportunity to appeal the Article 15 through proper channels.  He elected not to appeal his Article 15 to the next higher commander.  

	c.  There is no evidence that he was again promoted above the rank of PV2/E-2 between the date he was reduced by the NJP in November 2005 and the date he was discharged in January 2006.  His records correctly show his rank, grade, and effective date of pay grade.  He provides no evidence of an error or an injustice and as such, he is not entitled to the requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  As for the characterization of service, 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 to amend the decision of the ABCMR set forth in Docket Number AR20110013239, dated 15 December 2011.


2.  As for the new issue of restoring is rank/grade to SPC/E-4, 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)                                         AR20140018121



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ABCMR Record of Proceedings (cont)                                         AR20140018121



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