MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  15 September 1999
	DOCKET NUMBER:   AR1999022414

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Kathleen A. Newman		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 his general discharge be upgraded to an honorable discharge.  Additionally, he requests all pay entitlements that may be associated with a discharge upgrade including separation pay.

APPLICANT STATES:  In effect, that he had never been in trouble either in his military or civilian life until his court-martial; that he had served his country since 1985 and put his country’s needs before his own; and that the unethical tactics of his first sergeant (1SG) resulted in his court-martial and separation from military service.

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

He had 4 months and 28 days of prior USAR service.  He enlisted in the Regular Army on 30 August 1988 in the rank of private (PVT E-2) for a period of 4 years.  On 24 September 1988, he was assigned to Vicenza, Italy with duty in military occupation specialty 75D.  On 18 December 1992, he reenlisted for a period of 3 years.

His record of promotion shows that he was advanced to private first class (PFC E-3) on 1 April 1989 and specialist (SPC E-4) on 1 October 1989.  He was laterally appointed to corporal (CPL E-4) on 1 November 1991 and reconverted to SPC E-4 on 11 February 1993.

During the period from 23 April 1992 to 11 June 1993, he was formally counseled 
13 times for infractions that included numerous instances of disrespect to NCOs including his 1SG, failure to follow instructions, failure to repair (FTR), bad check writing, and generally substandard duty performance.

On 26 February 1993, nonjudicial punishment (NJP) by Article 15, UCMJ, was imposed against him for disrespect to a senior NCO.  His punishment consisted of reduction to PFC suspended for 60 days.

On 17 June 1993, he was convicted by summary court-martial for 1 charge and 
2 specifications of FTR and 1 charge and 4 specifications of disrespect to his 1SG.  He pled not guilty to all charges and specifications and was found guilty on all counts.  He was sentenced to reduction to PVT E-1 and 45 days of confinement without hard labor. 

On 16 July 1993, he was officially notified of his unit commander’s intent to initiate separation proceedings under the provisions of Army Regulation (AR) 635-200, Chapter 14, based on his continued disobedience to orders, disrespect, FTR, and lack of ability or desire to conform to a military life style.  He was afforded an opportunity to consult with a military lawyer.  He did not submit any statement in his own behalf and he waived appearance before an administrative separation board.  

He was also advised that his commander was recommending him for a discharge under 
honorable conditions (general); and that he may encounter substantial prejudice in civilian life with such a discharge.

His report of medical history did not indicate circumstances that warranted processing through medical channels.  His report of medical examination qualified him for separation.

In August 1993, the separation authority approved command’s request for separation and directed the issuance of a General Discharge Certificate.

His DD Form 214, separation document, showed that he was separated under honorable conditions on 9 September 1993 under the authority of AR 635-200, Chapter 14 for misconduct, commission of a serious offense.  He had completed 5 years, 
5 months and 8 days of active federal service.

AR 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.  Also, there is no entitlement to separation pay under this provision.

On 6 April 1999, he applied to the Army Discharge Review Board (ADRB) for discharge upgrade.  On 30 April 1999, the ADRB determined that he was properly and equitably discharged. The ADRB opined, after full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses, the discrediting entries in his record were not outweighed by prior or subsequent service of sufficient merit to warrant a discharge upgrade.  The ADRB also found no evidence of arbitrary or capricious actions by his command.  Also, all requirements of law and regulation were met and his rights were fully protected throughout the separation proceedings.

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 applicant’s request for discharge upgrade is not warranted when the evidence of record is considered.  

2.  The evidence of record clearly shows that he had significant difficulty in adjusting to the standards of military discipline and the appropriate conduct and behavior expected of a soldier of his rank and military service experience.

3.  Considering his record of duty performance as documented in numerous negative performance counseling statements, nonjudicial and judicial punishment, his separation could have been under other than honorable conditions.  However, his chain of command demonstrated leniency and consideration for his overall service by granting a general discharge.  There was nothing in the evidence of record or evidence submitted by him to substantiate his contention of injustice in his court-martial or separation proceedings.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.  Also, there were no pay entitlements due him or withheld from him as a result of his separation.

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

__JA____  ___TK___  ___KN__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022414	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990915	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19930909	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	MISCONDUCT-SERIOUS OFFENSE	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.