MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 February 1999
	DOCKET NUMBER:   AC98-12645
   AR1998012702

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. John P. Infante		Member	
	Mr. James P. Steuve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his general discharge be upgraded to honorable. 

APPLICANT STATES:  That the alleged charges were incorrect, he did not receive proper legal representation and he was refused a civilian attorney when he requested one.  In support of his application, he submits a letter of explanation dated 5 February 1998 and states that he has been a model citizen since his discharge and that his service was exemplary before the alleged charges.  He also submits three letters of recommendation from former superiors (Major General, Colonel and Major), a Certificate of Training for 40 Hours of Government Ethics, four Senior System Civilian Evaluation Reports (dated November 1993 through November 1997), and a copy of the Army Discharge Review (ADRB) proceedings dated 25 August 1997.  

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army Reserve under the delayed entry program and entered active duty in the Regular Army in an enlisted status on 21 August 1974. He was honorably discharged in the grade of staff sergeant to accept a commission as a Reserve Warrant Officer on 12 December 1983.  He was promoted to Chief Warrant Officer Two on 13 December 1985.   

On 18 February 1991, while in Saudi Arabia, nonjudicial punishment (NJP) was imposed against the applicant for violating a general order by drinking alcoholic beverages, failing to obey a lawful order, violating a lawful general regulation, fraternizing with three enlisted females and soliciting three enlisted soldiers to disobey a general regulation and to disobey lawful orders.  His punishment consisted of a written reprimand and a forfeiture of pay.

On 18 February 1991 he received a Letter of Reprimand for engaging in a pattern of misconduct with enlisted women in his unit and with a contractor doing business with the U.S. Army.

Elimination action was initiated by the General Officer Special Court-Martial Convening Authority on 13 March 1991 because of the applicant’s misconduct (acts of personal misconduct and conduct unbecoming an officer).
 
On 28 August 1991 he received a Memorandum of Reprimand for conduct unbecoming an officer by willfully participating in an improper relationship with his superior, a married officer.

On 27 February 1992 a Board of Inquiry convened at Fort Bragg, North Carolina, and recommended that the applicant be eliminated because of misconduct and that he be issued a General Discharge Certificate.

On 18 June 1992 the Army Board of Review for Elimination recommended that the applicant be eliminated from the Army and issued a general discharge.  On 10 July 1992, the Deputy Assistant Secretary (DA Review Boards and Equal Employment Opportunity Compliance and Complaints Review) approved the recommendation of the Army Board of Review for Elimination and directed that the applicant be eliminated from the Army with a general discharge.

Accordingly, he was discharged on 17 August 1992 under the provisions of Army Regulation 635-120, chapter 8, for misconduct moral or professional dereliction.  He had served 17 years, 11 months, and 21 days of total active service. 

On 24 February 1995 the applicant applied to the ADRB for an upgrade of his discharge.  He contended that he was given NJP during the preparation stage of the Gulf War and was not given enough time to decide whether he wanted a civilian or military attorney.  He also stated that he was too close to retirement to receive a bad discharge, that he requested to go back to enlisted status or early retirement under the new 15-year retirement program but was denied.  The ADRB determined that the applicant was properly discharged and denied his appeal on 25 August 1997. 

Army Regulation 635-120 sets forth the basic authority for officer resignations and discharges.  Chapter 8 of that regulation provides, in pertinent part, that upon final approval by the Secretary of the Army of elimination proceedings against any officer of the active Army, that officer, regardless of component, will be discharged as the result of such proceedings.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The applicant’s separation under the provisions of Army Regulation 635-120, chapter 8, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The applicant’s contention that the alleged charges were incorrect, appears to be without merit.  The Board notes the applicant had the opportunity to demand trial by court-martial to prove that the alleged charges were incorrect; however, he accepted NJP.

The applicant’s contentions that he did not receive proper legal representation and was refused a civilian attorney when he requested one, also appears to be without merit.  Evidence of record shows the applicant was afforded the opportunity to consult with counsel and was given 48 hours to make his decision. Additionally, he requested that the hearing be closed and that no one would speak in his behalf.

4.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that his discharge was unjust and should be upgraded.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___tnk __  ___jpi ___  __jps ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12645/AR1998012702	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/18	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1992/08/17	
DISCHARGE AUTHORITY	AR635-120, ch 8 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  A60.00		
2.		
3.		
4.		
5.		
6.