MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            8 September 1999
	DOCKET NUMBER:   AR1999018747

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff		Member	
	Mr. Orville W. Troesch, Jr.		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:  In effect, that the authority and reason for his discharge be changed from Chapter 14, AR 635-200 (Misconduct) to Chapter 4, AR 635-200 (Expiration of Term of Service).

APPLICANT STATES:  In effect, that the type of separation he received is inconsistent with his overall job performance and the alleged minor infractions that were the basis for his discharge.  The applicant enclosed 19 exhibits in support of his application which included his statement to the Board; an academic report for the basic noncommissioned officer course; several letters of recommendation, appreciation, and commendation; his appeal to a memorandum of reprimand and bar to reenlistment; Polygraph test results from a witness against him; three award certificates, two Army Achievement Medals (AAM) and an Army Commendation Medal (ARCOM); a letter of concern from a retired warrant officer; a record of field grade nonjudicial punishment (NJP); and e-mail correspondence discussing acceptance of the applicant’s request for conditional waiver of his right to an administrative separation board, contingent on his receiving an honorable discharge.  

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

On 15 January 1992, the applicant entered the Regular Army (RA) for 5 years.  At the time of his RA enlistment the applicant had completed basic training and already served for 2 years in the USAR.  Upon entering active duty, in the rank of specialist/E-4, the applicant was assigned to Fort McClellan, Alabama to attend advanced individual training (AIT) for training in military occupational specialty (MOS) 95B (Military Policeman).  After completion AIT the applicant was assigned to duty at Fort Ritchie, Maryland.  

In January 1994 the applicant attended a course to train in MOS 95D as a Criminal Investigation Division (CID) Special Agent enroute to his ultimate assignment in Korea.  On 1 June 1994, the applicant was promoted to the rank of sergeant/E-5.  The applicant’s record shows that he earned an AAM at Fort Ritchie, an AAM and ARCOM while in Korea, and that he earned the Army Good Conduct Medal upon completion of three years of active service on 15 January 1995.  At the conclusion of his tour in Korea the applicant was assigned to Fort Carson, Colorado where he reported for duty in June 1995.

The applicant’s disciplinary record shows that on 30 September 1996, he received a memorandum of reprimand (MOR) for being involved in a verbal and physical altercation at his quarters; and that on 30 January 1997 he was  apprehended by authorities from the Colorado Springs Police Department for driving under the influence of alcohol (DUI).

On 25 February 1997, the applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for dereliction of duty.  The basis for the NJP action was the applicant’s multiple willful use of his government credit card to obtain cash from an automated teller machines in order to obtain lift tickets, electronics, and appliances, all of which were purchases unrelated to official government business; and for wrongfully appropriating about $558.00 in U.S. currency.  His punishment for these offenses included a reduction in rank to specialist/E-4; a forfeiture of $697.00 per month for two months which was suspended; and 
30 days of extra duty.

On 8 April 1997, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct—commission of a serious offense, with a recommendation for a general, under honorable conditions discharge.  The unit commander cited the incidents for which the applicant received his NJP, and the DUI incident with civilian authorities, as the basis for taking separation action.  On 17 April 1997, the applicant was advised of his rights, consulted with legal counsel, and voluntarily waived consideration of his case by an administrative separation board contingent on receiving a characterization of service or description of separation no less favorable than honorable. 

On 30 April 1997, the separation authority approved the separation action and directed that the applicant be discharged under the terms of his conditional waiver and that he receive an honorable discharge.  Accordingly, on 12 May 1997, the applicant was discharged with an honorable discharge after completing 5 years, 3 months, and 28 days of active military service.  However, the DD Form 214 (Certificate of Release or Discharge from Active Duty), issued the applicant at discharge, incorrectly listed the authority for separation as Paragraph 14-12c (2), commission of a serious offense-abuse of illegal drugs, which also resulted in the assignment of incorrect Separation Program Designator (SPD) and Reentry (RE) Codes on the DD Form 214.  

On 21 May 1999 the Army Discharge Review Board (ADRB) concluded that someone in the discharge process erroneously changed the authority for separation to Paragraph 14-12c(2), commission of a serious offense-abuse of illegal drugs, which also resulted in the assignment of incorrect Separation Program Designator (SPD) and Reentry (RE) Codes on the DD Form 214.  Therefore, the ADRB directed that the appropriate administrative corrections be made and that the applicant be issued a corrected DD Form 214 (Certificate of Release or Discharge from Active Duty) which was accomplished on 21 June 1999.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedure for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, and desertion or absence without leave.

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 concurs with the findings and conclusions of the ADRB and the resultant administrative changes and corrections to the DD Form 214.  After carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board concluded additional relief, beyond that already granted by the ADRB, is not warranted.  

2.  The applicant was properly discharged under the terms and conditions of his own conditional waiver.  The discharge proceedings were conducted in accordance with law and regulation, and the reason for and the character of the discharge are commensurate with the applicant's overall record of military service.  

3.  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.

4.  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

__klw ___  ___fkm __  ___owt__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018747	
SUFFIX		
RECON		
DATE BOARDED	1999/09/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1997/05/12	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	A6730	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  807	A92.17	
3.		
4.		
5.		
6.