MEMORANDUM OF CONSIDERATION

	IN THE CASE OF       

	BOARD DATE:           16 August 2001                   
	DOCKET NUMBER:   AR2001055854

	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. Lee Cates 		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas F. Baxter		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 discharge be upgraded to fully honorable.

APPLICANT STATES: That there was a personality conflict between his first sergeant and himself which caused him to fall 7 months short of the period for which he enlisted.  The changing of his status would greatly improve his education benefits.

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

On 16 August 1995, the applicant enlisted in the Army.

On 13 March 1996, he was convicted by a Summary Court-Martial of carnal knowledge with a minor (sodomy, indecent acts with a child) on 1 January 1996.  His sentence included a forfeiture of $583 pay per month for 1 month, restriction for 45 days and hard labor without confinement for 45 days.

On 2 July 1997, he accepted nonjudicial punishment (NJP) under Article15, Uniform Code of Military Justice (UCMJ) for his failure to go to his appointed place of duty on 11 June 1997.  His punishment included a reduction to pay grade E-2 (suspended), a forfeiture of $235 pay per month for 1 month, restriction for 14 days and extra duty for 14 days. 

On 9 October 1997, he accepted NJP under Article 15, UCMJ for his failure to go to his appointed place of duty on 3 and 15 September 1997.  His punishment included a reduction to pay grade E-2, restriction for 14 days and extra duty for 14 days.

On 23 October 1997, a physical examination cleared the applicant for separation.

During the period April and October 1997, he was formally counseled on           18 occasions for his failure to go to his appointed place of duty, substandard performance of duty, failure to prepare for inspection, and for his failure to obey a lawful order.

On 25 November 1997, the unit commander notified the applicant of the initiation of a separation action under Army Regulation 635-200, paragraph 14-12c, for misconduct, based on his patterns of misconduct (1 court-martial, 2 NJP’s and  18 formal counseling statements) and he was advised of his rights. 

On 25 November 1997, the applicant, after consulting with legal counsel, acknowledged notification of his commander’s intent, declined counsel and elected to not make a statement in his own behalf.

On 2 December 1997, the appropriate separation authority approved the applicant’s discharge and directed he receive a general, under honorable conditions discharge.

On 17 January 1998, he was discharged under the above-cited regulation.  His separation document indicates he had 2 years, 4 months and 22 days of creditable service.

On 13 March 2001, the Army Discharge Review Board found his discharge to be proper and equitable and denied his request for upgrade of his discharge.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  A specific category was patterns of misconduct.  A general discharge was normally appropriate for a member who was discharged for patterns of misconduct.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

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 is not entitled to an upgrade of his discharge to fully honorable.

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

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His discharge was clearly caused by his misconduct.

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

__tfb___  _jmt___  _jh_                 DENY APPLICATION

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

INDEX

CASE ID	AR2001055854	
SUFFIX		
RECON		
DATE BOARDED	20010816	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.000	
2.		
3.		
4.		
5.		
6.