MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            18 January 2001                  
	DOCKET NUMBER:   AR2000044239

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 general under honorable conditions discharge be upgraded to honorable.

APPLICANT STATES:  That the Army does not have any evidence to support his present discharge or any reason to deny his reentering the Army as a chaplain.  He states that he never received an Article 15, a court-martial, counseling statements or any disciplinary action while he was stationed at Fort Belvoir, Virginia.  In support of his application, he provides a copy of a letter from the Army Discharge Review Board, dated 17 May 1999 and a copy of a letter from the Office of the Inspector General, dated 22 May 2000.

COUNSEL CONTENDS:  The Veterans of Foreign Wars, as counsel for the applicant, stated that current regulations state that processing for a discharge for misconduct by reason of minor disciplinary infractions or as a pattern of misconduct, “may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded the opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel record”.  Counsel also states that the applicant has earned the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation while serving in combat in the Republic of Vietnam. Counsel further states that the applicant is also a graduate of Drill Sergeant School.  Counsel requests that the applicant’s discharge be reviewed for an Honorable Discharge.

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

The applicant entered active duty on 12 March 1969 and served as a cook in Southeast Asia from April 1970 to March 1971.  He was honorably discharged from active duty on 7 March 1971 and transferred to the U.S. Army Reserve Control Group.  The applicant reenlisted in the Regular Army on 9 December 1974.  He was later reclassified as a combat engineer and completed three overseas assignments in Korea.  He reenlisted again in September 1978 and was promoted to the grade of E-6 in March 1981.

Evidence of record shows that the applicant received nonjudicial punishment on 4 December 1981 for behaving with disrespect toward a second lieutenant.  Records show that he received nonjudicial punishment again on 16 April 1983 for behaving with disrespect toward a captain and for causing a breach of peace.

Records show that the applicant received two noncommissioned evaluation reports (NCOER) during the period 1 October 1981 through 28 February 1982.  These reports show ratings of “55” and “78” based on a maximum total of 125 points per NCOER.  These reports were substantially below the Enlisted Evaluation Report weighted average for noncommissioned officers in grade E-6.

The Army Discharge Review Board (ADRB) case summary shows that the applicant was notified on 31 January 1984 by his unit commander of pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The applicant acknowledged notification, consulted with legal counsel, requested a hearing by a board of officers and did not submit a statement in his own behalf.  The applicant requested a hearing by a board of officers; however, the board proceedings are not in the available records. Records show that the unit and intermediate commanders recommended approval of the action to separate the applicant.  Records show the separation action was found legally sufficient.  

On 14 March 1984, the separation authority waived rehabilitation and approved separation with a general discharge.  The applicant was discharged on 21 March 1984 under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He had 5 years, 6 months and 11 days of creditable service on his current enlistment.  He had a total of 11 years, 3 months and 6 days of active Federal service.

In February 1997, the applicant was interviewed for a commission in the U.S. Army Reserve Chaplaincy.  The staff chaplain recommended approval.  On 18 November 1997, his application for entry into the Chaplaincy was denied. 

On 28 May 1997 and 27 June 1997, the Army Discharge Review Board (ADRB), by unanimous vote, denied the applicant’s request for upgrade of his discharge.

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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 the applicant’s record of indiscipline and substandard performance as cited in nonjudicial punishment and Noncommissioned Officer Evaluation Reports.  The Board also noted the ADRB proceedings revealed the applicant was counseled regarding his deficiencies; however, he did not conform to the required standards of discipline and performance to overcome these deficiencies which led to his discharge.

2.  Evidence presented in the ADRB proceedings also shows the applicant was properly notified of pending discharge, advised of his rights and consulted with military legal counsel.  He was afforded the opportunity to submit a statement in his behalf and to request a hearing by a board of officers.  Upon review by the command staff judge advocate, the separation action was determined to be legally sufficient.  At this time, the separation authority approved the separation with a general discharge.

3.  In the absence of compelling evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The Board has determined that the character of the discharge is commensurate with his overall record.

4.  The Board considered the applicant’s contention that the Army did not have evidence upon which to render a general discharge in his case or deny reentry in the Army as a chaplain.  Contrary to these assertions, there is evidence that his performance at the time in question did not meet the standard for an honorable discharge.  Further, the Board finds that the Office of Ecclesiastical Relations was within its authority to deny the applicant’s application based on his general discharge.

5.  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.

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

JNS_____  MHM___  JTM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000044239	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010118 	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19840321	
DISCHARGE AUTHORITY	AR635-200,chapter 13-2a	
DISCHARGE REASON	Unsatisfactory Performance	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.