MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 July 2001
	DOCKET NUMBER:   AR2001059576

	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. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Donald P. Hupman, Jr.		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:  In effect, that his discharge be upgraded and he be reinstated in the Army.

APPLICANT STATES:  In effect, that his separation paperwork was inaccurate and false.  

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

On 6 July 1998, the applicant enlisted in the Regular Army (RA) for 4 years.  At the time of this enlistment, he had already served for over a year in the United States Army Reserve (USAR) and had completed basic training.  Subsequent to his enlistment in the RA, he attended advanced individual training (AIT) at Fort Jackson, South Carolina and was awarded military occupational specialty (MOS) 75B (Administrative Specialist).

The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does contain a disciplinary history that includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two separate occasions.  

On 27 March 2000, the applicant accepted NJP for five separate specifications of  wrongfully failing to go to his appointed place of duty and his punishment for these offenses was 7 days of extra duty.  

On 12 September 2000, the applicant accepted NJP for two specifications of wrongfully failing to go to his appointed place of duty and for assaulting another soldier by pushing him to the floor and physically keeping him from leaving the room.  His punishment for these offenses included a reduction to the rank of private/E-1 (suspended), forfeiture of $234.00, and 14 days of restriction and extra duty.  

On 19 October 2000, the applicant was notified by his unit commander that separation action for a pattern of misconduct was being initiated against him based on the misconduct documented in the two NJPs he had accepted and his failure to respond positively to another chance he was provided to prove himself as a soldier.  The applicant was also advised that his unit commander was recommending that he receive a general, under honorable conditions discharge.

On 6 November 2000, the applicant consulted legal counsel and after being advised of the contemplated separation action and its effects, he completed his election of rights, in which, he elected to represented by counsel.  The applicant also submitted a statement in his own behalf, in which, he requested he be given another chance to show he learned from his mistakes and if discharged that he be given an honorable discharge. 
On 17 November 2000, the separation authority approved the separation action and directed that the applicant receive a general, under honorable conditions discharge.  Accordingly, on 9 January 2001, the applicant was discharged after completing a total of 2 years, 8 months, and 4 days of active military service.  

On 13 July 2001, the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge after determining that both the characterization of the applicant’s service and the reason for his discharge were both proper and equitable.  

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 and it states, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The issuance of a discharge under other than honorable conditions is normally considered appropriate; however, an honorable or general discharge may be granted.

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 Board noted the applicant’s contention that his separation packet contained false information and characterizations but finds this claim lacks merit. 

2.  The evidence of record confirms that the separation proceedings were conducted in accordance with applicable law and regulations and that the character of the applicant’s discharge is commensurate with his overall record of service.  

3.  In the absence of evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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

__FNE __  __SLP   _  __DPH __  DENY APPLICATION

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

INDEX

CASE ID	AR2001059576	
SUFFIX		
RECON		
DATE BOARDED	2001/07/17	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	2001/01/09	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.