IN THE CASE OF:	  

		BOARD DATE:	28 July 2015

		DOCKET NUMBER:  AR20140020689


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 discharge characterization, from under other than honorable conditions to honorable.

2.  The applicant states he went absent without leave (AWOL) on 2 occasions. First, he went AWOL to regain custody of his son, and second, he needed to check on his son's welfare since he was staying with friends.  He went AWOL on a third occasion after his drill sergeant threw coffee at him.  

3.  The applicant provides, in support of his request, an unsigned personal statement and: 

   a.  A memorandum from the Headquarters, U.S. Army Personnel Control Facility (PCF), U.S. Army Armor Center and Fort Knox, dated 17 April 2001, subject: Recommendation for Separation under the Provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 14, paragraph 14-12c (1) (Commission of a Serious Offense);
   
   b.  A letter from a previous employer, the State of New Jersey, Department of Transportation, dated 25 February 2013;
   
   c.  A letter from his current employer, T&T Enterprises of Ohio, Inc., dated     2 October 2014; and
   
   d.  Three arrest reports from the City of Hamilton Police Department, dated 
15 June 2002, 23 July 2005, and 11 January 2006.
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 ABCMR in Docket Number AR2002066881, dated 9 April 2002.

2.  The applicant provides a personal statement, letters from employers, and arrest records that constitute new evidence not previously considered by the Board.  Therefore, this new evidence warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 3 February 1999.  He entered active duty at Fort Benning, Georgia for the purpose of completing his initial entry training; however, he did not complete training and was not awarded a military occupational specialty.  

4.  His duty status changed from present for duty to AWOL on or about 21 June 1999.  He returned to military control on or about 16 July 1999.

5.  His duty status changed from present for duty to AWOL on or about 7 October 1999.  He returned to military control on or about 12 October 1999.

6.  His duty status changed from present for duty to AWOL on or about              24 October 1999, and he was dropped from the rolls of the Army on or about       28 October 1999.  He returned to military control on or about 16 November 1999.

7.  On 22 December 1999, he was notified by his immediate commander of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c (1), by reason of misconduct – commission of a serious offense.  He acknowledged receipt of the notification memorandum.

8.  He consulted with legal counsel on 22 December 1999 and was advised by counsel of the basis for the contemplated action to separate him under Army Regulation 635-200, chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He elected representation by counsel; however, he waived his right to submit a statement or statements in his own behalf.

9.  The applicant’s immediate commander recommended the applicant’s separation from the Army on 17 April 2001, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c (1), by reason of misconduct – commission of a serious offense.

10.  The separation authority approved his discharge on 14 June 2001 and directed that he be reduced to the lowest enlisted grade and separated under other than honorable conditions.

11.  The applicant was discharged from the Army on 27 June 2001.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c (1), by reason of misconduct.  

12.  His record is void of any documentation that references child custody issues that he may have been experiencing at the time of his period of active military service.

13.  The Army Discharge Review Board considered and denied his request for an upgrade of his discharge on 3 December 2001.

14.  He provides:

	a.  An unsigned personal statement, wherein he contends he was his son's sole caregiver from 1999-2001.  After entering the Army, his son's mother lost custodial rights and in order to retain custody, the applicant needed to return home.  To this day, he has custody of and provides for his son.

	b.  Letters from previous and current employers that attest to his employment status in recent years.

   c.  Three arrest reports from the City of Hamilton Police Department, dated   15 June 2002, 23 July 2005, and 11 January 2006.  His purpose for submitting these documents is unclear.

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

	a.   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.

	b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

   c.  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, 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge characterization, from under other than honorable conditions to honorable, was carefully considered; however, there is insufficient evidence to support his request.

2.  His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The evidence of record shows he consulted with counsel and was advised of the basis for the discharge action.

3.  Based on his record of indiscipline, including multiple periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service and the facts surrounding his discharge did not support the issuance of an honorable or general discharge by the separation authority at the time, and they do not support an upgrade of his discharge now.

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 to amend the decision of the ABCMR set forth in Docket Number AR2002066881, dated 9 April 2002.



      _____________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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20140020689



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