RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 January 2008 DOCKET NUMBER: AR20070011950 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Mr. Frank C. Jones, II Chairperson Ms. LaVerne M. Douglas Member Mr. Michael J. Flynn Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of Item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from “Misconduct” to a more favorable reason. 2. The applicant states that his misconduct was due to his illness and that he was in counseling for Post Traumatic Stress Disorder (PTSD) for two years prior to his discharge. He feels that he did a great job during his military service and deserves something other than misconduct. 3. The applicant provided the following additional documentary evidence in support of his application: a. a copy of his DD Form 214, dated 21 March 2005; b. copies of his Driver’s License, Social Security Card, and Department of Veterans Affairs Card; and c. a Commonwealth of Virginia, Warrant of Arrest, Class 1 Misdemeanor, dated 20 May 2004. CONSIDERATION OF EVIDENCE: 1. The applicant's records show that he enlisted in the Regular Army on 8 November 2000 for a period of 4 years. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator). The highest grade he attained during his military service was specialist/pay grade E-4. 2. The applicant's records further show that he served in Iraq in support of Operation Iraqi Freedom during the period 15 January 2003 through 15 July 2003. 3. The applicant’s records show that he was awarded the National Defense Service Medal, the Army Service Ribbon, the Global War on Terrorism Service Medal, and the Global War on Terrorism Expeditionary Medal. The applicant’s records do not reveal any significant acts of valor during his military service. 4. The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 21January 2004, for failing to go to his appointed place of duty on an unknown date. His punishment consisted of 14 days of extra duty and reduction to private first class (PFC)/E-3 (suspended until 21 April 2004). The facts and circumstances of this Article 15 are not available for review with this case. 5. On 29 March 2004, the applicant’s battalion commander considered punishing the applicant under Article 15 of the UCMJ for being absent without leave (AWOL) during the period on or about 10 March 2004 through on or about 15 March 2004 and for failing to go to his appointed place of duty on 9 March 2004. The applicant demanded trial by a Court-Martial. There is no indication that the Article 15 punishment was imposed or the Court-Martial convened. 6. On 20 May 2004, the Fort Eustis, Virginia, Military Police were notified by the Newport News, Virginia Police, that the applicant was arrested for pointing, holding, or brandishing a firearm or an object similar in appearance in such a manner to reasonably induce fear in the mind of another or holding a firearm or a weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. He was released on 2 June 2004 and returned to his unit. 7. The applicant's records reveal an extensive history of developmental counseling for repeatedly failing to report to his place of duty (9 instances), brandishing a firearm, and indebtedness in excess of $11,759.00. 8. On 7 February 2005, the applicant’s immediate commander notified the applicant that he was initiating separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for misconduct. 9. On 7 February 2005, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment. The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws. The applicant further elected to submit a statement on his behalf and requested a civilian counsel at no expense to the Government. The applicant's statement is not available for review with this case. 10. On 15 February 2005, the applicant’s immediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(b) of Army Regulation 635-200. He cited the applicant’s specific misconduct as being AWOL between 9 March 2004 and 12 March 2004; failure to go to appointed place of duty on 9 separate occasions; arrest for brandishing a weapon; and indebtedness. He further stated that the applicant demonstrated the inability to follow Army standards despite repeated counseling. The immediate commander further requested a waiver for a rehabilitative transfer since the applicant was determined to create serious disciplinary problems or a hazard to the military mission or to himself. 11. On 15 February 2005, the applicant’s intermediate commander recommended approval of the applicant’s separation for misconduct and a waiver of the requirement for a rehabilitative transfer. He further recommended the applicant be furnished a general discharge under honorable conditions. 12. On 4 March 2005, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct, and directed the applicant be furnished a General Discharge Certificate. The DD Form 214 the applicant was issued confirms he was separated on 21 March 2005 with a general discharge under honorable conditions. This DD Form 214 further confirms that he completed 4 years, 4 months, and 9 days of creditable active military service and he had 5 days of lost time due to AWOL. 13. The applicant submitted a copy of the Commonwealth of Virginia Warrant of Arrest, dated 2 June 2004, showing he was found not guilty of the charge of brandishing a weapon. 14. On 14 July 2006, the Army Discharge Review Board (ADRB) granted the applicant full relief in the form of an upgrade of is characterization of service to fully honorable. However, the ADRB determined that the reason for the discharge was proper and equitable and therefore did not change it. 15. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. The separation reason in all separations authorized by this paragraph will be “misconduct.” A discharge under other than honorable conditions was 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his narrative reason for separation should be changed from “Misconduct” to something more favorable. 2. There is no evidence in the applicant's record that his coping, adjustment, or transition difficulties upon returning from combat contributed to his repeated pattern of misconduct or indiscipline. The applicant was provided with multiple counselings by his chain of command as well as specialists at his installation; yet, it was determined that any rehabilitative transfer would not have yielded any positive results. 3. Evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. The applicant’s repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service. 4. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant was discharged under the provisions of paragraph 14-12 of Army Regulation 635-200. The only valid narrative reason for discharge permitted under that paragraph is "Misconduct.” In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Therefore, he is not entitled to relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __fcj___ __lmd___ __mjf___ 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. Frank C. Jones, II ______________________ CHAIRPERSON INDEX CASE ID AR20070011950 SUFFIX RECON DATE BOARDED 20070108 TYPE OF DISCHARGE (HD) DATE OF DISCHARGE 20050321 DISCHARGE AUTHORITY AR 635-200, Chap 14 DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 144.0000 2. 3. 4. 5. 6.