MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 July 19929      
	DOCKET NUMBER:   AR1999020216

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John Saputo		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 in order to be released to the inactive/standby Reserve, and to once again receive voluntary separation incentive (VSI) payments.  

APPLICANT STATES:  That he was discharged on 19 July 1997 as a result of action taken by an administrative separation board.  Prior to his discharge he was informed by his counsel that he would continue to receive VSI payments with a general discharge.  Consequently, he signed a conditional waiver.  He states that the DOD financial management regulation also indicates that payments would continue if a soldier received a general discharge under honorable conditions.  He states that both he and his counsel were misled by the prosecuting attorney.

He requests that his entire military record be taken into consideration, while serving in the Regular Army and the Reserves.  He admits his mistake, but states that there have been others who have been court-martialed who still receive their benefits, so he should receive his. 

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

The applicant served in the Regular Army for 19 years and 1 day, from               24 June 1976 through 30 June 1995, at which time he was discharged under the provisions of Army Regulation 635-200, paragraph 16-8, under the early release program-voluntary separation incentive.  His rank at the time of his discharge was Sergeant First Class, pay grade E-7.  His DD Form 214 shows numerous awards, including the Meritorious Service Medal, two awards of the Army Commendation Medal, three awards of the Army Achievement Medal, and six awards of the Good Conduct Medal, among others.  The applicant completed numerous military courses, to include infantry, Vulcan repairman, and the basic NCO course.  He had almost 8 years of service in Germany.  His DD Form 214 shows that he was awarded VSI in the amount of $12424.86.

Prior to his discharge, the applicant volunteered for and accepted an assignment to a Reserve unit in Lynchburg, Virginia.  He was assigned to that unit immediately upon his discharge from the Regular Army. 

On 10 July 1997 a USAR Judge Advocate Corps Major faxed the applicant a copy of a conditional waiver, as he had requested, stating that he should sign the waiver and fax the signed copy back to him (the Reserve major).  He also stated that another Major (prosecuting attorney) indicated that VSI should not be affected with a general discharge, and he agreed.

In a 10 July 1997 memorandum to the commander of the 80th Division, a Reserve command in Richmond, Virginia, the applicant stated that he had consulted with counsel of the basis of the contemplated action to separate him for abuse of illegal drugs under the provisions of Army Regulation 135-178, paragraph 7-11c.1 and its effects, and the rights available to him, and the effect of any action taken by him in waiving his rights.  He stated that he understood that he was entitled to have his case considered by an administrative separation board because of his years of service.  The applicant stated that he voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service or description of separation no less favorable than General, Under Honorable conditions.  He did not submit statements in his own behalf.  The applicant stated that he understood the nature and consequences of the general discharge that he might receive.

On 19 July 1997 the applicant was discharged from the Army Reserve.  He received a general discharge.

Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Army Reserve.  Chapter 7 provides for discharge for acts or patterns of misconduct, and paragraph 7-11c.1 states in effect, that first time drug offenders in the rank of Sergeant and above, and all soldiers with 3 or more years of total military service will be processed for discharge on discovery of a drug offense.  The service of a soldier discharged for misconduct will normally be characterized as under other than honorable conditions.  If warranted by the soldier’s overall record, a characterization of service under honorable conditions may be furnished.

MILPER message 92-85, dated 7 January 1992, provides implementing instructions for the enlisted voluntary incentive programs in support of Army drawdown.  Two incentives were offered, the VSI and the SSB.  Each incentive required affiliation with the Ready Reserve.  These programs have continued, with changes, through FY 98.  The methods of payments and Reserve obligations in effect since 1992, however, have not changed.  

A soldier approved for separation under the VSI program is paid an amount equal of 2.5 percent of his monthly basic pay on the date separated and enlisted in the Ready Reserve, multiplied by twelve and multiplied again by his years of service.  A soldier will be paid in annual installments commencing on his departure date from active duty, and on each anniversary date thereafter for twice the number of years of active duty, provided the soldier continues to serve in the Ready Reserve.  VSI annual payments will be discontinued if the member is separated from the Ready Reserve, except under certain conditions, i.e., the soldier’s death, the soldier becomes ineligible to continue to serve in the Ready Reserve through no fault of his own (at which time he will be transferred to the standby Reserve or the Retired Reserve, and continue to receive VSI payments).     
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  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.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

2.  The applicant waived his right to an administrative separation board provided he was afforded a characterization of service no less than general.  His conditional waiver was accepted and he received a general discharge.  The applicant contends that he received bad advice, and he implies that had he known that a general discharge would result in the discontinuance of his VSI payments, he would not have waived his right to a board.  That may be so; however, the applicant presupposes that that board would have recommended that he be discharged with an honorable characterization of service, in spite of his misconduct, and he would have continued to receive VSI payments.  To the contrary, the applicant could have also received an under other than honorable conditions characterization of service for misconduct, or the general characterization that he did receive, had he appeared before an administrative separation board. 

3.  Absent information to the contrary, the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The  general discharge was proper.  The applicant was a victim of his own misconduct.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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.

6.  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

__sac_____  __emw___  ___js___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020216	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990714	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	( DENY)	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2.  128.00		
3.   135.00		
4.		
5.		
6.