MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            13 June 2000                  
	DOCKET NUMBER:   AR2000035979

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern 		Member	
	Ms. Barbara J. Ellis		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 his records be corrected by upgrading his discharge.  

APPLICANT STATES:  That his undesirable discharge was inequitable because of an Article 15 he received for being disrespectful in language to a superior noncommissioned officer, when in fact, it was his heavy French accent which caused his pronunciation of certain words to be misunderstood; that while stationed in Germany he was charged with abandoning his post, after being left in an isolated location for almost 12 hours, in the cold with no food, water nor any expectation that the sergeant of the guard would return to relieve him; and that since he left the service he has worked hard, owned his own business, and worked for the postal service for 11 years with a good record.   

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

On 23 November 1981, he enlisted in the Regular Army for a period of 3 years.

On 26 September 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ) for failure to go to his appointed place of duty on 5 September and 8 September 1985; and for being disrespectful in language to a superior noncommissioned officer on    28 August 1985.  His punishment included reduction to pay grade E-2, forfeiture, extra duty and restriction.

On 31 December 1985, he accepted NJP under the provisions of Article 15, UCMJ, for wrongfully abandoning his post as a sentinel.  His punishment was reduction to pay grade E-1, forfeiture, extra duty and restriction.

Between July 1985 and April 1986, the applicant was counseled on numerous occasions for missing formations, failure to repair, disobeying a direct order, poor job performance, and his disruptive negative behavior.

On 7 January 1986, a medical examination cleared the applicant for separation. 

On 3 February and 21 March 1986, Mental Status Evaluations cleared the applicant for separation.

On 15 April 1986, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. 

On 15 April 1986, having been advised of his rights by legal counsel, the applicant authenticated a statement in which he indicated he understood the basis for the proposed separation, the rights available to him and the effect of a waiver of those rights.  The applicant declined legal counsel, and elected to submit a statement in his own behalf.  

On 20 May 1986, the unit commander recommended that the applicant be discharged.

On 30 May 1986, the appropriate separation authority waived a rehabilitative transfer; and directed that the applicant be transferred to the Individual Ready Reserve, and issued an under honorable conditions discharge.  Accordingly, on 22 September 1986, the applicant was separated under the provisions of Army Regulation 635-200, chapter 13.  His Report of Separation indicates he had       4 years, 10 months and 5 days of creditable service.  

On 13 June 1989, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/ or become a satisfactory soldier.

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.  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 requirements.  

2.  There is no evidence to substantiate his claim that he was misunderstood because of his French accent, nor is there evidence to justify him abandoning his post.  

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

5.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

6.  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

___eb___  ___jhk___  ___bje_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000035979	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000613	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2.		
3.		
4.		
5.		
6.