PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 December 1999                   
	DOCKET NUMBER:   AR1999028704

	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.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Christopher J. Prosser		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 that his general discharge be upgraded to fully honorable and the reason for discharge be changed to convenience of the Government.

3.  The applicant states that he was the victim of undue punishment.  He was told his chain of command was out to get him.  While on a field exercise he was punished for leaving his vehicle unsecured but the keys to the vehicle had been taken from him.  He was told his punishment would be corrective training.  His platoon executive officer was driving to the site so he waited to catch a ride with him and he got to corrective training five minutes late.  He was given a counseling statement and told it would go no further, yet when he returned from the field he was given an Article 15.  While serving his punishment, his roommate got into trouble one night so he went and got him out of trouble, but then he was punished for breaking restriction.  He felt his chain of command was against him so out of anger he did not go to the first three days of extra duty.  He was then court-martialed.  After his release from confinement he was given a general discharge seven days short of his normal expiration term of service (ETS).  He had been a good soldier for several years; how could he become one of the worst soldiers in the military in his last few months?  He provides as supporting evidence an Army Achievement Medal (AAM) citation and a portion of a DA Form 638, Recommendation for Award, showing he was recommended for award of the AAM 1st oak leaf cluster.  Counsel contends that the punishment was too harsh.  The offenses committed by the applicant were relatively minor in that they did not involve any periods of being absent without leave (AWOL) or any other acts that would be considered of a serious nature.  The incidents leading to his discharge occurred towards the end of his enlistment and his service up to that time appears to have been trouble free.

4.  The applicant's military records show that he enlisted in the Regular Army on 1 October 1993.  He completed basic training and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  He was awarded the AAM basic award for the period ending 30 November 1994.  He was promoted to Specialist, E-4 on 1 December 1995.  He was awarded the AAM 1st oak leaf cluster for the period ending 10 July 1996.  On 6 August 1996, he was assigned to the 2d Infantry Division, Korea.  

5.  On 22 May 1997, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.  His punishment was a reduction to Private First Class, E-3, a forfeiture of $271.00 pay, and 14 days restriction and extra duty.  He did not appeal the punishment.  

6.  On 27 June 1997, the applicant accepted NJP under Article 15, UCMJ for breaking restriction.  His punishment was a reduction to Private, E-1, a forfeiture of $454.00 pay for 2 months, and restriction and extra duty for 45 days.  He did not appeal the punishment.

7.  On 8 August 1997, the applicant was convicted by a summary court-martial of failing to report to his appointed place of duty and disobeying a lawful order.  He was sentenced to confinement for 15 days and to forfeit $298.00 pay.

8.  On 30 June 1997, the applicant completed a separation physical and was found qualified for separation.  On 10 July 1997, he completed a mental status evaluation and was found to be mentally responsible and mentally capable of understanding and participating in (separation) proceedings.

9.  On 3 September 1997, the applicant’s commander initiated separation action under the provisions of Chapter 14, Army Regulation 635-200 for pattern of misconduct.

10.  On 4 September 1997, the applicant acknowledged the separation action.  He requested consulting counsel and submitted a statement in his own behalf.  In his statement he noted his prior good service (noting among his other awards the Humanitarian Service Medal), stated that he knew that recently he had been a less than average soldier but felt he had been punished enough for the offenses he had committed.  He requested he be given an honorable discharge.

11.  On 8 September 1997, the appropriate authority approved the recommendation for separation, noted the applicant was ineligible for transfer to the Individual Ready Reserve and directed he receive a general discharge.

12.  On 23 September 1997, the applicant was discharged in the pay grade of   E-1 under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.  He had completed 3 years, 11 months and 11 days of creditable active service and had 12 days of lost time.  His DD Form 214 erroneously shows he has a reserve obligation termination date, erroneously shows his date of entry on active duty as 13 October 1993 and only lists award of the basic AAM.

13.  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.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

14.  On 18 June 1999, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

CONCLUSIONS:

1.  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.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  It is regrettable that he was discharged so close to his normal ETS but the events leading to his discharge were within his control.  If he believed the circumstances leading to his two Article 15s should have mitigated the punishment imposed, he should have appealed the Article 15s at the time.  He states he deliberately did not go to the first three days of extra duty given with his second Article 15.  In his statement submitted with his discharge packet he admitted he had been a less than average soldier and he did not state that he would “shape up” for the remaining two months of his enlistment.  The Board concludes his chain of command considered his prior good service in directing he receive a general discharge rather than a discharge under other than honorable conditions.  The Board concludes a general discharge was and still is appropriate.

2.  There are a few errors on the applicant’s DD Form 214.  Because he was discharged and not transferred to the Individual Ready Reserve he did not have a reserve obligation termination date (block 6).  He enlisted on 1 October 1993, not 13 October 1993 (block 12a).  (13 October 1993 was his adjusted basic active service date, not the date he entered active duty.)  The evidence of record shows he was awarded two AAMs (block 13).  There is no evidence of record to show he was awarded the Humanitarian Service Medal.

3.  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 amending the applicant’s DD Form 214, block 6 to read 0000 00 00; block 12a to read 1993 10 01; and block 13 to delete the Army Achievement Medal and add the Army Achievement Medal (1st oak leaf cluster).

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

BOARD VOTE:  

__gdp__  __clg____  __cjp____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			George D. Paxson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028704	
SUFFIX		
RECON		
DATE BOARDED	19991229	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19970923	
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.