MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            12 January 2000
	DOCKET NUMBER:   AR1999026929

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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 he be restored to active duty or provided back pay and allowances.  At the very least he requests his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was discharged from the Army with a GD as a result of an arbitrary and unlawful application of Army Regulation 
635-200.  He indicates that he received just one Article 15 during his term of service and the basis used for his misconduct discharge was his failure of the Army Physical Fitness Test (APFT).  He also claims that he was unfairly denied a rehabilitative transfer.  He concludes that he was a soldier with a severe profile in an infantry unit and because he occupied one of their positions and was not performing the duties he was illegally eliminated for misconduct.

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

On 7 August 1996, the applicant enlisted in the Regular Army for 3 years.  He entered active duty in rank of specialist/E-4 based on his level of education.  He successfully completed One Station Unit Training at Fort Benning, Georgia.  Upon completion of this training he was awarded military occupational specialty (MOS) 11B (Infantryman), and he was assigned to Alaska for his first permanent duty station.

The applicant’s record shows no documented acts of valor, significant achievement, or service warranting special recognition during his tenure in service.  His disciplinary record includes his acceptance of nonjudicial punishment, under the provisions of Article 15 of the UCMJ, and an extensive history of formal counseling on conduct and performance related infractions.

On 19 March 1998, the applicant accepted NJP for disobeying the lawful order of an noncommissioned officer who was in the execution of his duties.  The resultant punishment included a reduction to the rank of private first class/E-3; a forfeiture of $286.00 (suspended); and 14 days of extra duty and restriction (suspended).

Between April 1997 and February 1998, the applicant received several formal counseling statements for myriad of conduct and performance related disciplinary infractions.  These included the following:  multiple incidents of insubordinate conduct; overall poor duty performance; several for unsatisfactory physical condition; poor attitude toward the Army; resistance to authority; numerous failures to be at his prescribed place of duty; failure to obey orders; malingering; lying to the chain of command; multiple APFT failures; poor appearance; making a false statement; disobeying post driving policy; disrespect; and many incidents of missing medical and physical therapy appointments. 

The record includes evidence that the applicant began complaining of shoulder problems sometime in June 1997, which continued through his separation.  He was issued a temporary profile in August 1998; however, this still allowed him to perform many physical activities and there was no indication that he was physically unable to perform all the duties required in his MOS.  

The last formal counseling statement issued to the applicant covered a list of times that he had failed to attend physical therapy sessions for his shoulder and a specific time he missed an orthopedic appointment.  He missed this appointment after he had been allowed to remain back from going to the field on an exercise.  These missed appointments were verified with the applicant’s doctor by the chain of command.  The applicant’s physician indicated that the applicant had not attended physical therapy sessions for over 6 months and that the specific orthopedic appointment in question had not been cancelled by them. 

The applicant’s unit commander notified him of his intent to initiate action to separate him, under the provisions of Paragraph 14-12b, Chapter 14, 
Army Regulation 635-200, by reason of a pattern of misconduct and that he intended to recommend he receive a GD.  The unit commander cited the applicant’s record of NJP, his multiple failures on the APFT, and his continued failure to obey orders, as the basis for taking the action.  

On 5 August 1998, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, he completed his election of rights.  In his election statement, even though not eligible he waived consideration of his case by and personal appearance before an administrative separation board; he requested consulting counsel; and he elected to submit a statement in his own behalf.  His statement indicated that he believed his discharge was the result of his being unable to perform his duties due to a medical condition which required surgery.  In addition, he claims to have been treated poorly by his platoon sergeant and cited examples of what he considered harassment.

On 5 August 1998, the applicant’s defense counsel submitted a memorandum, in regard to the applicant’s separation action, through the chain of command to the commanding general.  In it he stated, in effect, that the separation packet contained insufficient evidence of any pattern of misconduct, and that the action should be disapproved.  He goes on to argue that if the applicant were truly a malingerer, his separation for misconduct would be appropriate, but in fact the applicant was suffering from a legitimate medical condition that required surgery, and his separation was the result of his inability to perform duties there were in violation of his legitimate profile.  

On 5 August 1998, the unit commander forwarded his recommendation for the applicant’s separation and requested that the requirement for a rehabilitative transfer be waived because the applicant created serious disciplinary problems; had resisted rehabilitation attempts; and rehabilitation would not be in the best interest of the Army.  The intermediate level commander concurred with the separation action and he further provided his recommended that a rehabilitative transfer be waived and that the applicant receive a GD. 

The Staff Judge Advocate reviewed the separation packet on the applicant and determined that it was legally sufficient, and on 12 June 1998, the separation authority approved the separation action.  He further waived the requirement for a rehabilitative transfer and directed that the applicant receive a GD Certificate.

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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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.  After carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board found no evidence of arbitrary or capricious actions by the command.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

2.  The evidence of record shows that before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about the deficiencies which could lead to his separation.  It was noted that the command made an assessment of the applicant's potential for becoming a fully satisfactory soldier and afforded him a reasonable opportunity to overcome the noted deficiencies.  As he failed to subsequently conform to required standards of discipline and performance, the command appropriately determined he did not demonstrate the potential for further military service.

3.  The evidence of record shows that although the applicant had a legitimate medical condition and a valid profile, he failed to comply with a medical treatment plan sufficiently to resolve his physical problem.  The Board determined that discharge proceedings were conducted in accordance with applicable regulations and the character of his discharge is commensurate with his overall record of military service.  Therefore, the Board concluded there was no basis to restore the applicant to active duty or to provide back pay and allowances, and an upgrade to his discharge is not warranted.  

4.  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.

5.  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

___js____  ___inw __  ___ld ___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026929	
SUFFIX		
RECON		
DATE BOARDED	2000/01/12	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1998/08/24 	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.