MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 February 2001
	DOCKET NUMBER:   AR2000046120

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Melvin H. Meyer		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 rank and pay grade at separation be corrected to show him as a corporal E-4, and that he receive all financial compensation due as a result of this error.

APPLICANT STATES:  That, in effect, since all court-martial charges were dropped without prejudice to the government, he is entitled to restoration of his rank and back pay.  In support of his application he provides a copy of a 2nd endorsement dated 20 May 1993, to a memorandum dated 25 March 1993, the subject of which is the withdrawal of court-martial charges, wherein it provides that charges and their specifications against the applicant were dismissed without prejudice to the government.  He also provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

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

He enlisted in the Army on 4 March 1987 for 3 years.  He successfully completed his initial training and was assigned to the Federal Republic of Germany for duty as a man portable air defense system crewman (16S).  He attained the rank of specialist on 1 May 1988 and was reassigned to Fort Ord, California on               9 September 1990.

On 23 February 1993 the applicant’s commander preferred unknown court-martial charges against him.  These charges were dismissed on 20 May 1993 without prejudice against the government.

On 7 May 1993 the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for going from his appointed place of duty without authority.  There may have been additional misconduct shown on the continuation sheet that is missing from the applicant’s records.  The punishment included a reduction to private E-1, a forfeiture of $407.00 per month for two months (suspended for 180 days), and 45 days extra duty and restriction.  The applicant’s appeal was denied.

On 24 June 1993 the applicant requested release from active duty (REFRAD) for the purpose of serving in the Ready Reserve and to qualify for separation pay. The appropriate authority approved his request.

On 28 June 1993 the commander approved the applicant’s REFRAD and directed that he be honorably separated as soon as possible.

Accordingly, the applicant was REFRAD under the provisions of Army Regulation 635-200, paragraph 16-8, Qualitative Retention Program, with an honorable characterization of service and separation pay.  He completed 6 years, 5 months and 20 days of creditable active service and was a private E-1 at separation.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-8 applies to personnel denied reenlistment and provides that soldiers may be separated prior to expiration of term of service when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced.  The Secretary of the Army, or his designee, will authorize voluntary or involuntary early separation under the authority of Title 10, United States Code, sections 1169 or 1171.  Early separation under this paragraph is for the convenience of the government and will be characterized as honorable.

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 applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2.  The applicant’s NJP included a reduction in rank to private E-1.  There is no evidence that this was improper or that he was subsequently advanced to any higher rank prior to his separation.  Therefore, his contention that his rank at separation should be corporal E-4, and that he is due back pay, is without merit.

3.  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

__FNE___  __MKP__  __MHM__  DENY APPLICATION

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

INDEX

CASE ID	AR2000046120	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010215	
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.	133.00	
2.		
3.		
4.		
5.		
6.