MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 February 2000  
	DOCKET NUMBER:    AR1999016177

	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.

	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Mr. Raymond J. Wagner		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 his general discharge is unjust because he was discharged for actions and misconduct which occurred outside his normal duty hours.  He contends that he was not given the opportunity for counseling or rehabilitation.  He states that this was his first duty station and he was very young and immature at the time.  He goes on to state that he has been an honest and law abiding citizen since his discharge, that he has no criminal record and he would like to have the opportunity to serve again in the future.   

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

The applicant enlisted on 14 July 1986 for a period of 3 years.  He successfully completed basic and advanced individual training and was transferred to Berlin, Germany, for duty as a cook on 9 December 1986. 

Between 18 December 1986 and 9 May 1988 the applicant was counseled on eleven occasions for various infractions to include failure to be at his appointed place of duty, failure to pass room inspection, unkempt room, leaving room unsecured and being late for work. 

On 9 November 1987 nonjudicial punishment (NJP) was imposed against the applicant for willfully damaging military property (toilets) and being drunk and disorderly.  His punishment consisted of a reduction to E-1 (suspended until
10 May 1988), forfeiture of $275 per month for 2 months and 24 days restriction

On 7 March 1988 NJP was imposed against the applicant for taking indecent liberties with a female under the age of 16.  His punishment consisted of a reduction to E-1, forfeiture of $312 and 60 days restriction.  

On 9 May 1988 NJP was again imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of $156 and 14 days extra duty.

On 7 June 1988 the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The unit commander recommended separation with a general discharge and based his recommendation on the applicant’s three NJP’s and numerous counseling statements which show he as an apathetic attitude toward military service.   

On 9 June 1988 the applicant consulted with counsel, acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued and elected to submit a statement on his own behalf.  In summary, he states that he has been in the Army for 2 years and stationed in Berlin for 17 months.  He contends that Berlin was a tough first assignment in the Army.  He believes his youth, immaturity and the fact that he was raised in a country environment contributed to his problems in the Army.  He knows he has been in a lot of trouble but he believes that he has adjusted as time passed.  He wants to make the Army his career.  He goes on to state that he would like to be given the chance to improve in an easier surrounding, like a duty station in the United States.  He also believes that he deserves a chance to prove himself to the Army and he asks for a rehabilitation transfer to a stateside duty assignment.  Also, the applicant’s immediate supervisor (first cook) and supply sergeant provided  statements on his behalf.   

On 21 June 1988 the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The unit commander also requested a rehabilitation waiver based upon the determination that further duty of the applicant would be inappropriate because he is resisting rehabilitation attempts and that rehabilitation would not be in the best interests of the Army as it would not produce a quality soldier.  The intermediate commander recommended approval of the recommendation for discharge.

Prior to discharge, the applicant underwent a mental status evaluation and medical examination and was found qualified for separation with a physical profile of 111111.

On 23 August 1988 the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

Accordingly, the applicant was discharged on 1 September 1988 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct (pattern of misconduct).  He had served 2 years, 1 month and
18 days of total active duty. 

On 28 January 2000 the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to honorable. 

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, 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.  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.

Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.  The Board noted the applicant’s contentions.  However, there is no evidence of record, and the applicant has provided no evidence, which shows that he was not given the opportunity for counseling or rehabilitation.  Discharge processing documents in the applicant’s personnel records show that he consulted with counsel on 9 June 1988.  Evidence of record also shows that the requirement for a rehabilitative transfer was waived by the applicant’s chain of command based upon the determination that further duty would be inappropriate because he was resisting rehabilitation attempts and that rehabilitation would not be in the best interests of the Army as it would not produce a quality soldier.  

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at that time.  The applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The Board reviewed the applicant’s record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  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 or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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

RVO____  EB______  RJW____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999016177	
SUFFIX		
RECON		
DATE BOARDED	20000223	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19880901	
DISCHARGE AUTHORITY	AR 635-200, chapter 14	
DISCHARGE REASON	Misconduct (pattern of misconduct)	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.