MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 January 2001                   
	DOCKET NUMBER:   AR2000046964

	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	
	Mrs. Nancy Amos		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 discharge be upgraded.

APPLICANT STATES:  That he was not able to nor was he allowed to attend his board hearing due to the fact he was hurt and under a lot of medication.  He did not fully understand his rights.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 1 June 1983.  He completed basic training and advanced individual training and was awarded military occupational specialty 19K (M1 Armor Crewman).  He was promoted to Sergeant, E-5 on 22 November 1985.  

In early March 1987, the applicant incurred a gunshot wound to his left shoulder area (circumstances unknown).  On or about 10 March 1987, he began physical therapy which included electric stimulation for muscle re-education.  It appears he began to wear a splint on or about 30 March 1987.  On 13 April 1987, he complained of constant and unrelieved aching pain in his fingers for which he was prescribed Motrin.  On 27 April 1987, he reported that the aching pain was gone and he continued to wear the splint at all times.  On 1 June 1987, he reported that he wore the splint most of the time but not for some two-handed activities and he was able to do about 30 pushups.  He complained of tingling in his fingertips.  There is no further entry in his medical records until after the date of his board concerning treatment for an eye injury.

Except for the minutes of the board, the applicant’s chapter 14 packet is not available.  The following information was taken from the Army Discharge Review Board’s (ADRB) 21 August 1989 action.  On 3 March 1987, a mental status evaluation cleared the applicant for separation.  On 11 March 1987, a medical examination cleared him for separation.  On 14 April 1987, he was notified of the initiation of separation action under the provisions of Army Regulation 635-200, chapter 14 for misconduct – commission of a serious offense.  He was advised of his rights.  On 14 April 1987, he acknowledged notification, consulted legal counsel, requested a hearing by an administrative separation board, and indicated he would submit a statement (not available).  On 9 June 1987, he was notified to appear before an administrative separation board.  On 10 June 1987, he requested a conditional waiver.  On 19 June 1987, the separation authority denied his request.  

On 22 June 1987, the administrative separation board convened.  The applicant elected not to be present. The applicant’s first sergeant (1SG), commander, and other witnesses testified that Private C___ one day informed his platoon sergeant that he was missing fifty dollars.  (The applicant was Private C___’s tank commander).  It was not the first time that money was missing and on both occasions the circumstances were the same – the applicant had borrowed the keys to his room for the purpose of using the bathroom.  Private C___’s key to his wall locker, where he kept his money, was on the same key ring.  The 1SG instructed Private C___ to write down the serial numbers of the remaining bills, give the listed numbers to the 1SG, and inform the 1SG immediately if the applicant should borrow his keys again.  That afternoon the applicant borrowed Private C___’s roommate’s keys.  Later, Private C___ found two fifty-dollar bills missing.  The 1SG informed the commander, who immediately informed the company that something had come up missing and he was going to find out who had stolen it.  During the search the applicant was found to have two fifty-dollar bills in his wallet and the serial numbers matched those of the missing bills.  Upon questioning, the applicant stated the bills were from a loan his wife had taken out earlier that day.  Upon talking to the applicant’s wife, she informed the 1SG that she had not taken out any loan in the time period concerned.  The commander testified that he was informed his search was illegal as he did not have sufficient probable cause.  That precluded him from taking the case to court.  He testified that he felt the need to conduct the search in a timely manner so as not to give the suspect a chance to dispose of the bills in question.

The board found that the evidence supported the fact that the applicant committed a serious offense and that the fact that he was a noncommissioned officer who victimized soldiers entrusted to his care made it a very serious offense.  The board recommended that the applicant be separated because of misconduct with a discharge under other than honorable conditions.

On 7 July 1987, the appropriate authority approved the recommendation for separation and directed the applicant receive a discharge under other than honorable conditions.

On 18 August 1987, the applicant was discharged, in pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  He had completed 4 years, 2 months and 18 days of creditable active service and had no lost time.

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.

On 21 August 1989, the ADRB denied the applicant’s request for an upgraded discharge.

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.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  The type of discharge given was appropriate for the misconduct committed.

3.  The applicant’s contention that he was unable to nor was he allowed to attend his board hearing because he was under a lot of medication is not borne out by the evidence in his medical records.

4.  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	AR2000046964	
SUFFIX		
RECON		
DATE BOARDED	20010118	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19870818	
DISCHARGE AUTHORITY	AR 635-200, ch 14	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.