MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:               20 July 2000
	DOCKET NUMBER:      AR1999029271

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		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:  That he be restored to active duty with all rights and privileges, that his records be corrected to reflect continuous military service without discharge, that he be compensated with all back pay and allowances effective 27 March 1995, that he be reinstated to active duty effective 27 March 1995 and that his narrative reason for discharge be changed to a more favorable reason.

APPLICANT STATES:  That he is represented by counsel.

COUNSEL CONTENDS:  Counsel states that the applicant’s discharge is improper because the evidence presented at the administrative separation board on 15 February 1995 did not support a recommendation for separation and that the focus of the board was on evidence not contained within the notification memorandum which was in violation of Army Regulation 635-200, paragraph
2-11.  Counsel also states that based upon error, the Army Discharge Review Board (ADRB) voted to upgrade the applicant’s discharge to fully honorable and that he should be retained on active duty.  Counsel further states that the burden of proving unsatisfactory performance is on the government, that two witnesses presented testimony at his hearing, neither of which could state under oath that they had the opportunity to observe the applicant’s performance and that the applicant never received a substandard rating.  Counsel goes on to state that six witnesses made favorable recommendations during the applicant’s hearing and the only way to account for the recommendation of the board is to focus upon the evidence that was to be excluded.  The allegations of spousal abuse were not an issue for the board and should not have been a factor in the final decision in the applicant’s case.  Counsel concludes by stating that the applicant’s discharge is inequitable, that the applicant’s narrative reason is in appropriate and that the applicant should not have been discharged.  In support of applicant’s application he submits a copy of his DD Form 214, copy Department of the Army letter, 14 January 1998, copy of the ADRB Decision, dated 13 August 1997 and a copy of an Order Granting Extension of Injunction Against Domestic Violence, dated 14 May 1997.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 13 May 1981 as a food service specialist.  He continued to serve through a series of continuous reenlistments.

Beginning in March 1991, the applicant received numerous counseling statements, Letter of Reprimands (LOR) and nonjudicial punishment (NJP) for
child neglect, for inappropriate association, for failure to obey a lawful general regulation, for failure to repair and disrespect, for assault, for letters of 

indebtedness, for failure of his self development test (SDT), for spousal abuse, for damage to government property, for rehabilitative failure in the anger management course and for misconduct and poor judgement,

The applicant was barred from reenlistment on 17 February 1993 for a variety of substandard performances and NJP.

On 10 January 1994, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The battalion commander supported elimination; however, the brigade commander disapproved the request for elimination and recommended that the applicant’s bar remain in effect. 

The applicant underwent a separation medical examination on 19 October 1994 and was found qualified for separation.

On 15  November 1994, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He based his recommendation on the applicant’s failure to meet the standards of the NCO Corps.

The applicant underwent a mental evaluation on 17 November 1994, which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.

After consulting with counsel, the applicant requested consideration of his case by and appearance before a board of officers.  He also requested representation by military counsel and elected not to submit a statement in his own behalf.  He acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration if a discharge under other than honorable conditions were issued.

On 31 January 1995, the applicant was notified to appear before a board of officers to determine whether or not he should be separated under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance before the expiration of his term of service (ETS).

The applicant appeared before the board on 15 February 1995 and was represented by counsel.  He was present during all open sessions of the board with his counsel and was afforded full opportunity to cross-examine adverse witnesses, to present evidence on his own behalf, and to testify or submit a written statement.

Counsel for the applicant objected to the admission of documents contained in the previous Chapter 13 packet as part of the Chapter 13 case.
The board recommended that the applicant be separated under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and issued a General Discharge Certificate.  The appropriate authority approved the findings and recommendation of the board of officers on 6 March 1995.

Subsequent to the board of officers, the applicant through his counsel requested reconsideration of the findings and recommendations and separation under honorable condition.  The convening authority denied his request.  The applicant was discharged on 27 March 1995.  He had a total of 13 years, 10 months, and 15 days of creditable service.

The applicant applied to the ADRB for an upgrade of his discharged on 23 July 1997.  The ADRB considered the length and quality of the applicant’s service record and the reason for discharge, and it determined that the characterization of service was too harsh.  The Board also noted that the applicant had over
13 years of honorable service when he was discharged.  The applicant presented testimony and evidence to support his contention that marital and family problems impaired his ability to serve.  The ADRB voted unanimously to change the characterization of service to fully honorable.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.

The Department of the Army letter, dated 14 January 1998, informed the applicant that his discharge has been changed to Honorable and that a new separation document had been prepared and was enclosed for his signature.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory
soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 

Paragraph 13-1 of Army Regulation 635-200 states that a soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  This reason will not be used if the soldier is in an entry-level status.

Paragraph 2-11 of Army Regulation 635-200 states:  (a) presentation of evidence.  The rules of evidence for court-martial and other judicial proceedings are not applicable before an administrative separation board.  Reasonable restrictions will be observed, however, concerning relevancy and competency of evidence.  (b) New discovered evidence.  If, prior to the beginning of the board hearing, the commander or the board recorder discovers additional evidence, similar in nature to that previously considered by the commander in recommending the separation, that evidence is admissible.  Such evidence may be considered by the board as proof of an amended or new factual allegation in support of a reason for separation which was cited in the commander’s recommendation for separation.  If the newly discovered evidence solely constituted a reason for separation which was not included in the notice of proposed separation, it is necessary that the case be returned to the commander for consideration as to whether an additional reason for separation should be included in the notice.  When such additional evidence is considered and the board determines that the respondent has not had reasonable time to prepare a response to it, a reasonable continuance must be granted upon the respondent’s request.

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 noted that applicant’s contentions that he should be restored to active duty with all rights and privileges, that his records should be corrected to reflect continuous military service without discharge, that he should be compensated with all back pay and allowances effective 27 March 1995 and that he should be reinstated to active duty effective 27 March 1995.  

2.  Evidence of record shows the applicant was recommended for administrative separation under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  During initial processing of this separation action, the applicant was provided a copy of the recommendation for discharge and was afforded consultation with counsel.  When the applicant requested consideration by a board of officers, he was provided counsel.

3.  Evidence of record shows that, consistent with his rights, the applicant was present during all open sessions of the board of officers with his counsel and was afforded the opportunity to examine all witnesses, to present evidence on his own behalf and to testify or submit a written statement.  

4.  Evidence of record shows that a properly appointed board of officers considered the applicant’s case and determined that the applicant should be separated from the Army for unsatisfactory performance.  Evidence of record shows that the applicant was in fact separated from the Army for unsatisfactory performance.

5.  Based on the foregoing, it appears that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  As a result, this Board finds that the type of discharge directed and the reasons therefor were appropriate at the time of the applicant’s separation considering all of the facts of the case.

6.  Contrary to counsel’s contention that the evidence presented at the hearing on 15 February 1995 did not support a recommendation for separation, evidence of record lists incidents of failure to be at the applicant’s appointed place of duty, failure of the SDT, imposition of a bar to reenlistment approved by a General Officer and failure to correct his deficiencies over time.  The Board noted that witnesses testified positively about certain aspects of the applicant’s performance; however, the evidence presented to the board of officers consisted of more than testimony by these soldiers, notably records including the applicant’s personnel records, evaluations, counseling statements, record of punishments, reprimands, and bars to reenlistment.  

7.  This Board noted counsel’s contention that the focus of the board of officers was on evidence not contained in the notification memorandum.  It is clear that the applicant and his counsel at the time were aware of the several factors for the separation action because the applicant was notified in writing of the grounds for separation and he acknowledged receipt of the recommendation for separation on 15 November 1994.  The applicant was also advised by counsel of the matters related to the separation action and his right to appear before a board of officers.

8.  Counsel contended that the ADRB upgraded the applicant’s discharge based on error.  This is not factual.  The ADRB Case Summary states on page 4 that the ADRB considered the applicant’s general discharge too harsh in view of his 13 years of honorable service.  The ADRB did not find error by the board of officers or in the discharge process.

9.  The Board noted the decision by the ADRB to change the characterization of service to honorable.  The Board also noted that the ADRB voted unanimously not to change the reason for discharge in this case. 

10.  This Board noted counsel’s contention that allegations of spousal abuse were not an issue for the board of officers and should not have been a factor in the final decision of this case.   This Board further noted that, during the hearing, counsel for the applicant objected to the admission of documentation or references to the alleged spouse and child neglect and the President of the Board of Officers sustained that objection.  

11.  After review of the entire case, this Board finds no evidence that narrative reason for his discharge was improper or was inequitable.  Therefore, the applicant is not entitled to a change in the narrative reason for his discharge.

12.  This Board also finds no compelling evidence submitted by the applicant or his counsel which warrants overturning the recommendation of the board of officers or the decision of the separation authority.  Therefore, there is no basis for restoring the applicant to active duty with entitlement to back pay and allowances.  

13.   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 this requirement.

14.  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:
SAC____  AMC____  KLW_____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR1999029271	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000720	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19950327	
DISCHARGE AUTHORITY	AR 635-200, C 13	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.  46		
3.		
4.		
5.		
6.