MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            23 August 2001                  
	DOCKET NUMBER:   AR2001056275

	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:

	Mr. John H. Kern		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Thomas Lanyi		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 the payments for his Loan Repayment Program (LRP) be prorated.

APPLICANT STATES: That he was advised that if he was discharged earlier than at the expiration of his term of service, under a characterization of service other than dishonorable, his LRP would be prorated.  He indicates he was not dishonorably discharged.

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

On 18 March 1997, he enlisted in the Army for 4 years in pay grade E-2 and the Army Station/Command/Unit/Area Enlistment Program for Europe and the Incentive Enlistment Program (Army Loan Repayment Program) not to exceed $65,000 and military occupational specialty of 13F (Fire Support Specialist).

On 19 November 1997, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being drunk and disorderly on 5 October 1997.  His punishment included a reduction to pay grade E-2, a forfeiture of $210 pay per month for 1 month and extra duty.

On 2 December 1998, he accepted NJP for stealing from a non-appropriated fund on 20 September 1998.  His punishment included a reduction to pay grade E-2 (suspended), a forfeiture of $254 pay per month for 1 month, extra duty and restriction.

On 23 August 1999, he was convicted by a summary court-martial of possession of a knife with a blade over 3 inches long, unlawfully striking another soldier and willfully damaging by kicking a window control switch.  His sentence included a forfeiture of $590 pay per month for 1 month and hard labor for 30 days.  

On 9 November 1999, he was discharged with a General Discharge under Army Regulation 635-200, paragraph 14-12B, based on misconduct.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 2 years,     7 months and 22 days of creditable service.

On 28 November 2000, the Chief, Education Incentives and Counseling Branch, Total Army Personnel Command (PERSCOM) advised the applicant that he did not qualify for his LRP to be prorated.

Public Law 99-145, Section 671(a)(1), governs the LRP and states the Army will prorate an individual’s payment if at least one full year of enlisted service is completed and the individual is discharged for certain convenience of the Government, service connected disability, or hardship reasons.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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.

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 evidence of record does not support the applicant’s request to have his LRP prorated, since the reason for his discharge was misconduct and not one of the qualifying reasons.  He was discharged after completing 2 years, 7 months and 22 days of active duty.

2.  This Board operates under the standard of presumption of regularity in governmental affairs.  The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

3.  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 and, in the absence of evidence to the contrary, it is presumed that his discharge was conducted in accordance with law and regulations applicable at the time.

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

_pm_____  _jhk____  __tl___       DENY APPLICATION

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

INDEX

CASE ID	AR2001056275	
SUFFIX		
RECON		
DATE BOARDED	20010823	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	112.12	
2.		
3.		
4.		
5.		
6.