MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            8 March 2001
	DOCKET NUMBER:    AR2000047167

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Barbara J. Lutz 		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:  That his under other than honorable conditions (UOTHC) discharge be upgraded to a fully honorable discharge.

APPLICANT STATES:  In effect, that he suffered a severe back injury while he was in the military and the issue cannot be addressed unless he gets his UOTHC upgraded.  “His chain of command was not in his corner and he lost his hearing.”

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

That prior to the period of service under review, the applicant served honorably in the Regular Army (RA) from 9 June 1989- 17 September 1992, from 
18 September 1992-22 March 1995 and from 23 March 1995-8 December 1996. He was not issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) at the completion of these periods of service.

He served in Saudi Arabia (Operation Desert Storm/Desert Shield) from 
10 December 1990-25 April 1991.  He served in military occupational specialty (MOS) 13B (Cannon Crewmember) and MOS 73D (Accounting Specialist).

On 9 December 1996, he reenlisted in the RA for a period of 2 years, MOS 
73D, pay grade E-4 and his current duty assignment at Fort Carson, Colorado. 

On 14 October 1997, he accepted NJP for wrongfully using cocaine between 
22 July 1997 and 22 August 1997, and for disobeying a lawful order from a noncommissioned officer on 25 September 1997.  His punishment included reduction from pay grade E-4 to pay grade E-1, forfeiture of $450.00 pay per month for 2 months and 45 days extra duty and restriction.  

On 2, 3 and 17 September 1997, the applicant was counseled for inappropriate behavior, misconduct and domestic violence.  On 26 September 1997, he was counseled for violating a 17 September 1997, restraining order.  He violated the restraining order by returning to his place of residence and arguing with his wife.

On 26 September 1997, the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for the third time.  Prior to this incident, he was command referred to ADAPCP on 5 January 1994 for a positive urinalysis test and on 5 October 1995 for driving under the influence of alcohol. 

On 6 October 1997, the applicant received a medical/physical examination and he was determined to have chronic mechanical lower back pain, Osgood Schlatters disease, tendentious/bursitis in his right shoulder, and hemorrhoids. He also had a physical profile.  The examining official determined that he was qualified for a medical evaluation board/physical evaluation board; however, on the very same day he was determined to be physically fit for administrative separation.

On 7 October 1997, he received a mental status evaluation.  He was determined to be mentally responsible, able to distinguish right from wrong and to adhere to the right.  He was determined to be mentally fit for administrative separation.

On 14 October 1997, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using a controlled substance, cocaine, between 22 July and 22 August 1997 and for disobeying a lawful order of a noncommissioned officer on 25 September 1997.

On 14 October 1997, the Department of Family Services in Colorado investigated an allegation of child abuse.  The investigation determined substantiated child physical abuse by the applicant.  The recommendation was that the applicant continue his treatment in the ADAPCP and that he attend a Domestic Violence Awareness Workshop and parenting classes.  The case was to be reviewed in January 1998.

On 23 October 1997, he received a more extensive mental status evaluation consisting of a clinical interview and psychometric testing.  He received the following diagnosis:  AXIS I:  Adjustment disorder with depressed mood.  AXIS II: Deferred.  AXIS III:  Chronic back pain.  His symptoms showed mild to moderate depression.  The NJP that he received, his loss of rank and restriction was causing him stress.  He was also concerned about the pending drug abuse allegations and the separation action.  Again, he was determined to be mentally fit for any administrative action deemed appropriate.

On 14 November 1997, the applicant received a Letter of Reprimand for breaking and entering another soldier’s room and for larceny of private property ($85.00) on 11 November 1997.

On 2 December 1997, the applicant’s commander notified him that he was being recommended for discharge under the provisions of Chapter 14, Army Regulation 635-200, for misconduct -- commission of a serious offense, with a UOTHC discharge.  The commander cited the basis for his recommendation as the applicant’s wrongful use of cocaine, his DUI, unlawful entry, and his willfully disobeying a lawful order. 
On an unknown date, the applicant acknowledged notification and he voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service of not less than a general discharge.  He requested that his case be referred to an administrative separation board if the conditional waiver was refused.  He was advised by legal counsel of the basis for the contemplated action, its potential effects, and the rights available to him.  He authenticated a document with his own signature in which he acknowledged that he understood the ramifications of receiving a GD.  He was entitled to a personal appearance before an administrative separation board.  On 10 December 1997, he contended in a statement submitted in his own behalf that he had been an honor graduate in every course that he had attended, that he had received numerous awards throughout the course of his career and that he had served unselfishly during Operation Desert Storm and that he believed that these achievements entitled him to a favorable discharge.

On 13 January 1998, the applicant was notified that a board of officers would meet on 28 January 1998 to determine whether he should be discharged from the service for misconduct--commission of a serious offense before the expiration of his term of service. 

On 28 January 1998, the applicant appeared before the board of officers with counsel.  During the board proceedings, the chain of command referred to his various violations of the UCMJ, and stated that the applicant had been disruptive to the unit and that the command believed that he could not be rehabilitated. 

On 28 January 1998, the board of officers recommended that the applicant be separated for commission of serious offenses with a UOTHC discharge.  The board of officers found that the applicant's wrongful uses of cocaine; drunken driving; domestic assault; unlawful entry; and his willfully disobeying a lawful order on two separate occasions demonstrated a repeated pattern/commission of serious misconduct since 1994.  Additionally, the board of officers took into consideration the applicant's decorations and awards and determined that his awards did not negate the serious misconduct in which he engaged.

On an unknown date, the approval authority directed that the applicant be separated for misconduct--commission of serious offenses with a UOTHC discharge.  

On 4 February 1998, the applicant was separated under the provisions of chapter 14, Army Regulation 635-200, for misconduct with a UOTHC discharge.  He had completed 1 year, 1 month and 25 days of creditable active military service on the enlistment under review and he had 7 years, 5 months and 
19 days of prior active service.  He had been awarded the Army Achievement Medal, 3rd award; the Good Conduct Medal; the National Defense Service Medal; the Southwest Asia Service Medal with 3 bronze service stars; the Kuwait Liberation Medal (Kuwait); the Army Service Ribbon; the Overseas Service Ribbon; the Expert Marksmanship Qualification Badge with Rifle Bar; and the Expert Qualification Badge with Grenade Bar.

Evidence of record indicates that on 10 January 2001, the Army Discharge Review Board denied the applicant's request for upgrade of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter l4 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.  A UOTHC discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may also be awarded.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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 or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

3.  The Board determined that both the characterization of service and the narrative reason for separation were appropriate considering all the facts of the case.

4.  The overall quality of the applicant’s last period of service does not warrant an upgrade of the discharge.  However his prior periods of service from 
9 June 1989-8 December 1996 should be considered as a complete and unconditional separation.  

5.  Even though the applicant was not issued a DD Form 214 at the completion of his first three periods of service, the DD Form 214 issued at the end of his fourth period of service shows that he honorably completed his first period of service.  

6.  The applicant received a medical/physical evaluation just days prior to his discharge.  Even though he was determined to have a back problem, he was found medically fit for separation.  The applicant has provided no probative medical evidence to the contrary.

7.  If the applicant believes that he has a service connected disability, he should contact the Department of Veterans Affairs (DVA) for a determination of his entitlements to medical care or disability.  However, final determination rests with the DVA, not the Department of the Army.

8.  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

__rwa___  __bjl ____  __wdp __  DENY APPLICATION

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

INDEX

CASE ID	AR2000047167	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000308	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19980204	
DISCHARGE AUTHORITY	AR 635-200, Chapter 14 	
DISCHARGE REASON	A67.50	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.6750	
2.		
3.		
4.		
5.		
6.		

On 8 January 1990, a letter of amendment notified the applicant to appear before the board of officers on 14 May 1990.