MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 February 2001    
	DOCKET NUMBER:   AR2000047718

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Donald P. Hupman		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 under other than honorable conditions be upgraded to honorable.  

APPLICANT STATES:  In effect, that his discharge should be upgraded. 

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

The applicant enlisted in the USAR on 20 January 1989 for a period of 8 years.  He was ordered to initial active duty on 22 February 1989 for basic and advanced individual training (AIT).  

While in AIT, the applicant received nonjudicial punishment on 26 May 1989 for disobeying a lawful command from a superior commissioned officer and disobeying a lawful order from a noncommissioned officer.  His punishment consisted of extra duty and restriction. 

The applicant received an adverse counseling statement on 5 July 1989 for not reporting for duty and violation of pass policy.  His military records also include numerous sworn statements attesting to the applicant’s disrespectful behavior, disrespectful language and disregard for military authority.     

On 18 July 1989, while in AIT, the applicant was convicted by a summary court-martial of disobeying a lawful command from a superior commissioned officer and disobeying a lawful order from a noncommissioned officer.  He was sentenced to a forfeiture of $200 and 15 days of confinement.      

On 20 July 1989 the applicant was notified of his pending separation under the provisions of Army Regulations 635-200, chapter 14, for misconduct.  The company commander recommended that the applicant receive a discharge under other than honorable conditions and based his recommendation on the applicant’s nonjudicial punishment, summary court-martial and numerous other serious offenses.  He stated that the applicant’s actions indicate gross misconduct and a total lack of respect for authority, that he cannot function productively in a military environment and that he should be separated from active duty as expeditiously as possible.   

After consulting with counsel on 20 July 1989, the applicant waived consideration of his case by an administrative separation board, representation by counsel and elected not to make a statement on his own behalf.  He also acknowledged that he may encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

On 21 July 1989 the company commander initiated action to separate the applicant with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for pattern of misconduct.  He also recommended that the applicant not be transferred to the Individual Ready Reserve and that the requirements for rehabilitative transfer be waived because further rehabilitation would not produce a quality soldier and would not be in the best interest of the Army. 

The intermediate commanders concurred with the recommendation for separation and the issuance of a discharge under other than honorable conditions.

On 10 August 1989 the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.  He also waived the requirement for a rehabilitative transfer because rehabilitation would not be in the best interest of the Army as it would not produce a quality soldier.   

The applicant went AWOL on 15 August 1989 and returned to military control on 18 August 1989.

The applicant was discharged on 18 August 1989 with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for pattern of misconduct.  He had served 5 months and 13 days of total active service with 14 days of lost time due to confinement and AWOL.

On 6 December 2000 the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to general.

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, and convictions by civil authorities.  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 discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The Board reviewed the applicant’s record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  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.
  
5.  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

JHL____  GDP_____  DPH_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000047718	
SUFFIX		
RECON		
DATE BOARDED	20010208	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19890818	
DISCHARGE AUTHORITY	AR 635-200 Chapter 14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.