PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 November 2000                   
	DOCKET NUMBER:   AR2000043248

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Terry L. Placek		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 discharge be changed to a length-of-service retirement.

3.  The applicant states, in effect, that he was discharged because one separation board member did not agree with his participation in an incident that happened to him while stationed in Korea.  He was not charged with his money problems but for the death of a friend of a board member.

4.  The applicant’s military records show that after having had prior service in the U. S. Army Reserve, he enlisted in the Regular Army on 19 May 1976.  

5.  The applicant was assigned to Korea from 10 June 1976 through 26 August 1977.  He was presented a 2d Infantry Division Certificate for Meritorious Participation for his participation in Operation Paul Bunyan.  Two American soldiers were killed by North Korean soldiers in this operation.

6.  The applicant was promoted to Staff Sergeant, E-6 on 1 May 1991.  On        14 May 1992, he was assigned to Headquarters and Headquarters Company,   U. S. Army South (USARSO), Panama as the USARSO Safety Noncommissioned Officer (NCO).

7.  On 18 February 1993, the applicant requested early return of his dependents to the States due to marital difficulties.  A supporting statement from a chaplain noted that the applicant and his wife had been married for over 13 years during which time the marriage experienced a great deal of verbal, emotional and physical abuse.  

8.  On 8 July 1993, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for making an official statement on or about 2 June 1993, with intent to deceive, that the reason he was getting a flight physical was because someone in his chain of command wanted him to get one so he could go on flight status.

9.  On 21 September 1993, a flag (suspension of favorable personnel actions) was initiated on the applicant due to a field-initiated elimination action.

10.  The applicant’s NCO Evaluation Report (NCOER) for the period ending October 1993 shows that he was rated as “excellent” in two areas of NCO responsibilities and as “success” in the other three areas.  His rater rated his potential for promotion as fully capable.  His senior rater rated his overall performance and overall potential for promotion as successful and superior, respectively (“2” check blocks out of a range of 1 down to 5).  Part IV, NCO values, contains all “yes” entries including for the value areas “Is disciplined and obedient to the spirit and letter of a lawful order,” Is honest and truthful in word and deed,” and “maintains high standards of personal conduct on and off duty.”  The Commanding General, USARSO was the reviewer for this NCOER and he concurred with the rater and senior rater evaluations.

11.  On 16 December 1993, the Commanding General, USARSO forwarded the elimination papers pertaining to the applicant to the Adjutant General, USARSO. The general stated that he reviewed the Report of Proceedings and the applicant’s submissions and recommended that he be discharged with an honorable discharge.

12.  On 16 March 1994, the Commander, U. S. Total Army Personnel Command (PERSCOM) approved the recommendation to discharge the applicant for a pattern of misconduct and directed that he be issued an Honorable Discharge Certificate.  

13.  Other than the Commanding General, USARSO’s recommendation and PERSCOM’s approval, the applicant’s elimination paperwork is not available.

14.  The applicant’s NCOER for the period ending May 1994 shows that he was rated as “excellent” in two areas of NCO responsibilities, as “success” in two areas, and as “needs some improvement” in one area (physical fitness and military bearing; he had failed the run on his Army Physical Fitness Test).  His rater rated his potential for promotion as fully capable.  His senior rater rated his overall performance and overall potential for promotion as successful and superior, respectively (both 1 ratings).  Part IV, NCO values, contains all “yes” entries including for the value areas “Is disciplined and obedient to the spirit and letter of a lawful order,” Is honest and truthful in word and deed,” and “Maintains high standards of personal conduct on and off duty.”  The Commanding General, USARSO was the reviewer for this NCOER and he concurred with the rater and senior rater evaluations.

15.  On 9 June 1994, the applicant was discharged, with an honorable characterization of service, for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b (discreditable acts with civil or military authorities).  He had completed 18 years, 4 months and 8 days of creditable active service with no lost time.  His awards included the Meritorious Service Medal, the Army Commendation Medal 2d oak leaf cluster, and the Army Good Conduct Medal 5th award.  He held military occupational specialty (MOS) 67U at the time of his separation.

16.  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.  Paragraph 14-12b states that soldiers are subject to separation for a pattern of misconduct.  A pattern of misconduct consists 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 violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

17.  Army Regulation 623-205 establishes the policies and procedures for the NCOER system.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 3-1 states that the reviewer is responsible for rating safeguard overwatch.  He or she may comment only when in disagreement with the rater or senior rater.  The reviewer will examine the evaluation rendered by the rater and senior rater to ensure they are clear, consistent and just in accordance with the known facts.

18.  Military Personnel Message number 92-223, Subject:  Fiscal Year 1994 Early Retirement Program prescribed eligibility requirements for early retirement for Regular Army enlisted soldiers.  It stated that early retirement was not an entitlement and would be offered only to soldiers who met the strict eligibility requirements outlined in the message.  Individuals approved for early retirement must have departed active duty no later than 31 August 1994.  As a condition for early retirement, individual must have been on the Public and Community Service Personnel Registry.  Employment with such an organization must have occurred between the date of early retirement and the date on which the member would have otherwise completed 20 years of active military service.  Soldiers must have held a specified MOS to be eligible to apply for retirement (67U was not one of the MOSs); however, soldiers with a bar to reenlistment who had completed over 18 years of active federal service could apply for early retirement regardless of MOS or grade.

19.  On 9 December 1997, the applicant applied to the Army Discharge Review Board (ADRB) to change the reason for his discharge to retirement.  The ADRB noted that not all the facts and circumstances pertaining to the applicant’s discharge were on file.  The ADRB noted that the applicant’s Certificate of Release or Discharge form Active Duty, DD Form 214, supported the available documentation that he was separated for a pattern of misconduct and that he signed the DD Form 214 verifying the form to be correct and true.  The ADRB was convinced that the reason for discharge was both proper and equitable and voted to deny relief.

CONCLUSIONS:

1.  The Board agrees with the ADRB that, in the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The Board does not agree, even considering the lack of that evidence, that his discharge was equitable.

2.  During the time period the applicant was supposedly involved in a pattern of misconduct, which included receiving an Article 15 for making an official statement with intent to deceive, his rater and senior rater rated his performance and potential for promotion as above average on two NCOERs.  No comments were made that he was not disciplined and obedient to the spirit and letter of a lawful order, or not honest and truthful in word and deed, or that he did not maintain high standards of personal conduct on and off duty.  In fact, the opposite comments were made.  More than this, the reviewer on those two NCOERs, the very same commanding general who recommended the applicant’s discharge for a pattern of misconduct, concurred in the ratings of the applicant’s rater and reviewer.  It was the reviewer’s responsibility to ensure the NCOERs were clear, consistent and, more importantly in this case, just in accordance with the known facts.  His concurring with the evaluations on these two NCOERs leaves doubt as to whether his reason and recommendation for the applicant’s discharge were just.  

3.  In addition, Army Regulation 635-200, chapter 14 states that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The Board concludes that it was not clearly established that rehabilitation was impracticable or unlikely to succeed.  Besides the two noted NCOERs, the Board also notes that the applicant’s awards included the Meritorious Service Medal.  The Board is aware that it is rare for a Staff Sergeant to receive this decoration as a service award.  This award and the two noted NCOERs indicates to the Board that whatever his misconduct actually was he was amenable to rehabilitation for the next two years until he was eligible for a length-of-service retirement.

4.  The Board notes that the applicant did not meet the MOS requirement for eligibility to apply for early retirement in fiscal year 1994.  However, as a matter of equity the Board concludes that it would be appropriate to grant him an early retirement as an exception to policy in lieu of the length-of-service retirement he requests.  

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

    a.  voiding the applicant’s 9 June 1994 discharge;

    b.  paying him all active duty back pay and allowances due him from 10 June 1994 through 30 June 1994;

     c.  showing that he retired for length of service, under the Temporary Early Retirement Authority, on 30 June 1994, transferred to the Army Reserve Control Group (Retired), and was placed on the retired list on 1 July 1994 in pay grade  E-6, as an exception to policy, and waiving the requirement to register with the Public and Community Service Personnel Registry; and

     d.  paying to him all retired pay and allowances effective 1 July 1994 that will become his due as a result of this correction.

2.  Prior to his placement on the retired list, the applicant will be provided counseling and make an appropriate election concerning the Survivor Benefit Plan.

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

BOARD VOTE:  

__slp___  __mw____  __tlp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043248	
SUFFIX		
RECON		
DATE BOARDED	20001114	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19940609	
DISCHARGE AUTHORITY	AR 635-200, ch 14 	
DISCHARGE REASON	A64.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	136.05	
3.		
4.		
5.		
6.