MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           8 June 2000                 
DOCKET NUMBER:   AR1999023873

	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. Carl W. S. Chun		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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:  Reconsideration of his application to correct his records by changing his Under Other Than Honorable Conditions (UOTHC) discharge to an Uncharacterized - Entry Level Separation (ELS) 

APPLICANT STATES:  In effect, that the information on the Commanders Report of Inquiry/Unauthorized Absence (DA Form 4384) in concert with his counsel’s contentions and arguments show that he was unable to adjust to military life and should have received an Entry Level Separation.

COUNSEL CONTENDS:  In effect, that the applicant was not given effective counsel.  He avers that the group situation in which the applicant received his counseling from the assigned military lawyer was a violation of attorney-client confidentiality and deprived the applicant of the opportunity to explore all options available to him.  Counsel contends that AR 635-200, paragraph 10-2 was violated in that the applicant was not give 72 hours in which to consider his options.  He contends that the lack of private consultation with a lawyer deprived the applicant of his ability to make an informed decision and that the military counsel violated regulations in not affording individualized counseling.  He further contends that it is unfair to have given the applicant the same type of discharge that others whose offenses were more grievous.  He contends that since the applicant had only 39 days of enlisted service before going AWOL with a total of less than 180 days of enlisted service, he should have been given an Uncharacterized Entry Level Separation (ELS).

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 9 September 1998 (COPY ATTACHED).

The applicant submits an undated copy of a DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence) that has in block 11, inability to adjust to military life checked.

This document was not previously available to the Board nor did the Board specifically address the issue of release under the ELS provisions.  This constitutes new evidence and argument that requires Board review.

The applicant’s records show that he served 138 days on active duty as a Reserve officer between 13 June 1992 and 23 June 1997.  He served on active duty as an E-4/SPC from 24 June 1997 through 24 November 1997.  The applicant had 37 days lost time (AWOL), 114 days of creditable service for a total of 151 days enlisted service and a aggregate total of 289 days of active duty. 

Army Regulation 635-200, section 3-9 sets forth the provisions for uncharacterized separations in the case of entry-level status.  It states that a separation will be described as an uncharacterized entry level separation if processing is initiated while the soldier is in an entry level status, except when characterization Under Other Than Honorable Conditions is authorized under the reason for separation and is warranted by circumstances of the case.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions (UOTHC) is normally considered appropriate.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel for unsatisfactory performance or conduct while in an entry-level status as evidenced by inability, lack of reasonable effort or a failure to adapt to the military environment.  Chapter 11 provisions apply only to individuals whose separation processing is started within 180 days of their entry into active duty.  An uncharacterized separation is mandatory under this chapter.

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 does not accept the argument that group counseling about the basic provisions for discharge or the AR 635-200, chapter 10 option constitutes violation of attorney-client confidentiality.  The applicant acknowledged his right to speak to an attorney and did submit a statement on his own behalf to offer mitigating factors.  There is no evidence that the applicant was coerced or denied adequate opportunity in which to seek additional advice and counsel of a qualified attorney.  

2.  AR 635-200, chapter 10-2 provides that a soldier should be afforded an adequate time, not less than 72 hours, in which to make a decision as to whether or not to request a chapter 10 discharge.  However, once this election is made the discharge authority is not obligated to delay further action on that request until the expiration of the 72 hours. 

3.  While the applicant had less than 180 days as an enlisted soldier but he also had 138 days of active duty as an officer over a five-year period. 
4.  The applicant’s records show that he participated in a 2 year ROTC program and was a Reserve officer for 5 additional years.  The Board concludes that the applicant’s enlisted service, after seven years of service as a cadet and Reserve officer, can not truly be considered to have been considered an entry level status with this type of military background.

5.  The use of AR 636-200, chapter 11 is the prerogative of the discharging authority.  Nothing in this chapter prevents separation under another provision of the regulation.  Additionally, AR 635-200, chapter 3, states that even though a soldier is in an entry-level status, an UOTHC characterization may be awarded if the situation warrants.  The Board concludes that the UOTHC discharge was fully warranted in this situation. 

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

___SLP__  ___LEM_  __AAO__  DENY APPLICATION

	Carl W. S. Chun
	Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR1999023873	
SUFFIX		
RECON	 	
DATE BOARDED	20000608 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	144.9301	
3.		
4.		
5.		
6.