MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 January 1999                   
	DOCKET NUMBER:   AC98-12420
				   AR1998013624

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Margaret V. Thompson		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:  In effect, that he was not afforded legal counsel, that his infractions of military discipline had been appropriately punished under Article 15, Uniform Code of Military Justice (UCMJ), and he was never counseled or offered a rehabilitative transfer.  He also states that he had an alcohol problem.  He self-referred himself to Alcohol and Drug Counseling in an effort to resolve this problem and should have been given an honorable discharge.

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

He enlisted in the Regular Army on 5 August 1986.  He completed basic training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  

On 1 April 1987, the applicant reported for emergency medical treatment in an intoxicated state.  He was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for screening. 

On 8 July 1987, the applicant accepted non-judicial punishment under Article 15, UCMJ for being disrespectful in language towards a non-commissioned officer.  He checked that he would present matters in defense, mitigation and/or extenuation but nothing is included with the Article 15.  He did not appeal this Article 15.

On 10 July 1987, the applicant was screened by ADAPCP and was recommended for Track I rehabilitation.

On 14 August 1987, a mental status evaluation was completed on the applicant.  He was found to be mentally capable of understanding and participating in proceedings and mentally responsible.  On this date he waived a separation physical.  This document does not state for what reason he was being considered for separation.

On 13 October 1987, the applicant accepted non-judicial punishment under Article 15, UCMJ for disobeying a lawful order and willfully damaging military property, the tire of a Military Police van, by puncturing it with a knife.  He checked that he would present matters in defense, mitigation and/or extenuation but nothing is included with the Article 15.  He did not appeal this Article 15.

On 16 October 1987, the applicant was released from the ADAPCP Track I by reason of completing the program.  His counselor assessed his progress during rehabilitation as unsatisfactory.

A document date-stamped 27 October 1987 and signed by his commander notified the applicant that he intended to recommend the applicant for administrative separation under the provisions of Chapter 14, Army Regulation 635-200.  The applicant acknowledged receipt of that notification on 26 October 1987.

On 2 November 1987, the applicant waived consulting counsel, signed a statement that he declined the opportunity to consult with counsel, and did not submit any statements in his own behalf.

On 16 November 1987, the commander formally recommended the applicant be discharged for misconduct.  

On 23 November 1987, the appropriate commander approved the recommendation to discharge the applicant under the provisions of Army Regulation 635-200, Chapter 14 for misconduct – commission of a serious offense and directed he receive a general discharge.

On 15 December 1987, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct - commission of a serious offense.  He had completed 1 year, 4 months and 11 days of creditable active service and had no lost time. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, convictions by civil authorities, desertion or absence without leave.  An individual may be separated for commission of a serious offense if a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.

Chapter 1 of Army Regulation 635-200 states that adequate counseling and rehabilitative measures must have been taken before initiating action to separate a soldier for one of five reasons, to include minor disciplinary infractions or a pattern of misconduct.  Misconduct – serious offense is not one of these reasons.

Chapter 9 of Army Regulation 635-200, Alcohol or Other Drug Abuse Rehabilitation Failure, states that nothing prevents separation of a soldier who has been referred to an ADAPCP program under any other provisions of the regulation.

The Manual for Courts-Martial states that the maximum punishment for willfully damaging military property of a value of $50 or less includes a bad conduct discharge.
On 21 February 1989, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

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

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error.

2.	The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  There is no evidence which would explain the date discrepancy on the applicant’s initial notification that he was being considered for separation (document date-stamped 27 October 1987; he signed it 26 October 1987).  However, the Board believes it was a clerical error only.

3.  The regulatory guidelines on counseling and rehabilitative transfers do not pertain to individuals being considered for separation for misconduct – serious offense.

4.  On 2 November 1987, the applicant signed a statement declining the opportunity to consult with counsel.

5.  The evidence of record indicates that medical authorities referred the applicant to ADAPCP for screening.  The evidence also shows that he was released from the program, after completing Track I, prior to initiation of the separation action.  In any case, Army Regulation 635-200 does not prevent the separation of a soldier who has been referred to an ADAPCP program under any other provisions of the regulation.

6.  The applicant received non-judicial punishment for willfully damaging military property, an offense which fell within the definition of a serious offense.  He could have been court-martialed and received a punitive discharge.  Instead, he was administratively discharged.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case and his previous creditable service.

7.  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_____  WTM_____  MVT_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12420/AR1998013624	
SUFFIX		
RECON		
DATE BOARDED	19990113	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19871215	
DISCHARGE AUTHORITY	AR 635-200 Ch 14 .  .  .  .  .  	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.