MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 October 2000
	DOCKET NUMBER:   AR2000039134

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Melinda M. Darby 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. William D. Powers		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 the findings and recommendations of an Administrative Separation Board (ASB) against him be set aside and that his general, under honorable conditions discharge (GD) be rescinded.  In addition, he requests that he be reinstated in the Army and returned to active duty as a Specialist/E-4 (SPC/E-4).   

APPLICANT STATES:  In effect, that he believes that the way he was separated and the fact that he was separated at all was unfair.  He states that his problems began when he encountered a female Sergeant First Class (SFC) in his unit who constantly harassed him and even went so far as to verbally insult him, his wife, and other family members.  He also comments that during this time he and his wife were having problems which ultimately led to a divorce and that his wife had made negative comments to Noncommissioned Officers (NCO) of the unit so that they would form a bad opinion of him.  One of these NCOs confirmed that his wife had indicated that she would make it her mission to get him thrown out of the Army.  He also indicates that he continually informed the chain of command about these problems and that he feared for his career in the Army, however, nothing was ever done.  He claims that his separation was ultimately based on the statements of two other soldiers in the unit who claimed that he communicated a threat to the female NCO mentioned above.  However, he believes that these two soldiers submitted the statements in order to help get him out of the Army because they did not get along in the work place.  The applicant provides the enclosed statement which provides his expanded argument on the issues and the four enclosed third party statements from soldiers who were in his unit and who support his application. 

COUNSEL CONTENDS:  The Trial Defense Counselor (TDC), who represented the applicant before the ASB that recommended his separation submits the enclosed appeal on the applicant’s behalf.  Counsel requests that the applicant be reinstated on active duty and states, in effect, that the ASB proceedings were flawed and should be set aside.  He claims that the ASB was unfairly tainted by the recommendation of the unit commander.  He claims that the new unit commander elected to process the applicant for separation when the previous commander had already deemed that action inappropriate and changed his character of service recommendation from GD to UOTHC in reprisal for the applicant requesting his case be heard by an ASB.  Finally the TDC contends that ultimately the evidence presented before the ASB did not support their finding of a pattern of misconduct because the majority of the charges against the applicant were unsupported.  The TDC’s statement containing his expanded argument on the issues of the case is enclosed.

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

On 23 September 1997, he reenlisted in the Regular Army for three years, in the rank of Private First Class/E-3 (PFC/E-3), which began the period of enlistment under review.  At this time he had already completed over three years of prior active military service in the Regular Army.  His prior service ended on 
27 October 1996, when he was released from active duty (REFRAD), under the provisions of Army Regulation 635-200, paragraph 16-8, by reason of reduction in force.  His service for this period of prior service was characterized as general, under honorable conditions. 

In October 1997, the applicant arrived in Germany for duty and he was assigned to the 69th Air Defense Artillery (ADA) Brigade.  He was promoted to SPC/E-4 on 
24 November 1997.  There are no other acts of valor, significant achievement, or service warranting special recognition on file in the applicant’s record of service for the enlistment under review. 

His service record does contain an extensive disciplinary history, which includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two separate occasions, and several records of formal counseling are on file that document numerous incidents of disciplinary infractions by the applicant throughout the enlistment period under review. 

Between November of 1997 and April of 1998 the applicant received 11 formal counseling statements.  These records of counseling cited the applicant’s deficiencies in conduct and duty performance as follows:  multiple incidents of failure to obey orders; breaking medical profile; lack of motivation; multiple displays of poor attitude; multiple occurrences of poor duty performance; multiple events of failure to repair; insubordination; and communicating a threat. 

On 1 April 1998, the applicant accepted NJP for failure to repair, disrespect toward a superior NCO, and failure to obey a lawful order.  The Department of the Army (DA) Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) on file indicates that after being advised of his right to demand trial by court-martial the applicant accepted the NJP and immediately declined to appeal this action.  

On 29 May 1998, he accepted a second NJP for communicating a threat, which resulted in his being reduced in rank to PFC/E-3.   This record of proceedings prepared on this NJP confirms that the applicant elected not to demand trial by court-marital and that he accepted the NJP and did not elect to appeal the action. 

On 3 September 1998, the applicant was notified by his unit commander that separation action, under the provisions of paragraph 14-12b, Army Regulation 635-200, for a pattern of misconduct was being initiated against him.  The commander cited the applicant’s record of NJP and the offenses incorporated in those actions as the basis for his taking the separation action.  

In his separation action notification, the unit commander informed the applicant that although he had originally intended to recommend he receive a GD, a review of the applicant’s entire file revealed sufficient evidence to support his changing his original recommendation.  Therefore, he formally advised the applicant that he was recommending that he receive an UOTHC discharge in conjunction with the separation action.  

On 3 September 1998, after receiving the unit commander’s notification, the applicant consulted legal counsel.  After being advised by counsel of the basis for the contemplated separation action and its effects, and of the rights available to him, he completed his election of rights.  He requested consideration of his case by and personal appearance before an ASB, and he also requested that he be represented by counsel.

On 17 September 1998, the Officer in Charge of the Kitzingen Law Center, Office of the Staff Judge Advocate (OSJA) reviewed the applicant’s separation packet and after conducting his legal review concluded that the recommendation for separation for a pattern of misconduct with an UOTHC discharge was legally sufficient.  

On 18 September 1998, the applicant’s Brigade commander forwarded the separation packet with a recommendation that the applicant receive a UOTHC discharge to the separation authority.  On 7 October 1998, the separation authority referred the applicant’s case to an ASB for consideration.

On 3 November 1998, the ASB convened to consider the separation recommendation pertaining to the applicant.  The applicant and his counsel were present for this hearing.  At the completion of their deliberations, the ASB found that the applicant was undesirable for further retention in the military service due to a pattern of misconduct and they recommended that he be separated with a GD.

On 4 December 1998, the separation authority approved the findings and recommendations of the ASB and further directed that the applicant be separated for a pattern of misconduct with a GD.  Accordingly, on 9 January 1999 the applicant was discharged after completing 1 year, 3 months, 17 days of his current enlistment and a total of 6 years and 24 days of creditable service.  

There is no indication in the evidence of record that the applicant has applied to the Army Discharge Review Board for an upgrade to his discharge. 

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. 

Paragraph 14-12b contains guidance establishing a pattern of misconduct.  It states, in pertinent part, that a pattern of misconduct can consist of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct that violates the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  Although an honorable discharge or a 
GD may be awarded for member separating under these provisions, an UOTHC discharge is normally considered appropriate. 

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.  Notwithstanding the contentions of the applicant and his counsel, the Board finds that the applicant’s discharge proceedings, to include the ASB, were conducted in accordance with law and regulations and that the character of the applicant’s discharge is commensurate with his overall record of military service.

2.  The Board noted counsel’s claim that the unit commander changing his recommendation on the type of discharge and the fact that the action was referred by the CG tainted the ASB.  However, the Board finds no evidence to support these claims.  

3.  The unit commander changed his recommendation prior to the applicant consulting counsel and the separation action was determined to be legally sufficient by the OSJA subsequent to this change.  Further, the ASB recommendation that the applicant receive a GD supports the conclusion that they were not unduly influenced by the unit commander’s recommendation for a UOTHC discharge.

4.  Once the ASB determined that the applicant was undesirable for further service, and that rehabilitation was not a viable option, they were more than justified in recommending his separation based on a pattern of misconduct, which was well within their purview.  

5.  Army regulation does not require a specific number of incidents or level of misconduct to establish a pattern of misconduct.  Thus, the Board finds counsel’s argument that the evidence was insufficient to support the ASB finding of a pattern of misconduct lacked merit.  

6.  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.

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

___mmd_  ___ao___  ___wdp__  DENY APPLICATION

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

INDEX

CASE ID	AR2000039134	
SUFFIX		
RECON		
DATE BOARDED	2000/10/26	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1999/01/09	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.