PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 February 2000                  
	DOCKET NUMBER:   AR1999023520

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James P. Steuve		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his general discharge under honorable conditions be upgraded to fully honorable.

3.  The applicant states that he will be attending college and the upgrade is needed so he can get his G. I. Bill benefits.  He did complete his first term of enlistment.  He provides his DD Forms 214 and 215 as supporting evidence.

4.  The applicant's military records show he enlisted in the Regular Army on        4 February 1992.  He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Canon Crewmember).  On 28 September 1994, he was honorably discharged for the purpose of immediately reenlisting on 29 September 1994.

5.  On 30 March 1995, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from his superior commissioned officer and superior non-commissioned officer. 

6.  On 5 July 1995, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from 16 May to on or about 9 June 1995.

7.  On 12 July 1995, the applicant completed a separation physical and was found qualified for separation. 

8.  The applicant’s commander initiated separation action under the provisions of Chapter 14, Army Regulation 635-200 for commission of a serious offense and cited his Article 15 for disobeying orders from his commissioned and              non-commissioned officers.

9.  On 25 July 1995, the applicant acknowledged the separation action, waived his right to legal counsel and did not submit a statement in his own behalf.

10.  On 31 July 1995, the appropriate authority approved the recommendation for separation and directed the applicant receive a general discharge.

11.  On 16 August 1995, the applicant was discharged, in pay grade of E-3 under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.  He had completed 3 years, 5 months and 19 days of creditable active service and had   24 days of lost time.

12.  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.
13.  The Department of Veterans Affairs (VA), in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

14.  On 11 March 1997, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable laws and regulations in effect at the time of his separation.  

2.  Considering the applicant’s record of misconduct during his second term of service, it would not be appropriate to change the records to show that he was discharged honorably from the reenlistment commencing on 29 September 1994. However, it appears that his honorable discharge of 28 September 1994 should be considered as having been issued as a complete and unconditional separation.

3.  The circumstances of the applicant’s honorable discharge on 28 September 1994 have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 28 September 1994.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__vbc___  __jps___  __klw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Van B. Cunningham
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023520	
SUFFIX		
RECON		
DATE BOARDED	20000210	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19950816	
DISCHARGE AUTHORITY	AR 635-200, Ch 14 	
DISCHARGE REASON	A60.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.