MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           29 November 2001
	DOCKET NUMBER:   AR2001062435

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr. 		Chairperson	
	Mr. John P. Infante		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 separation be changed to a 15-year retirement.

APPLICANT STATES:  That he has over 18 years of service, but he is not drawing any type of retirement benefits.

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

He was a staff sergeant in the US Army Reserve (USAR).  During the period 25 August 1986 to 5 January 1990, he served on active duty at Fort McPherson, Georgia.  On 11 September 1987, he was arrested at Maxwell Air Force Base, Alabama, for driving under the influence (DUI) of alcohol.  This was his sixth drunk driving offense since 27 September 1984.

On 15 August 1988, the applicant was convicted in United States District Court for the offense of drunk driving and sentenced 12 months' confinement and a fine of $1,000.  The confinement was reduced to 5 months.  He served his sentence to confinement from 3 October 1988 through 15 February 1989.

On 5 October 1989, a FLAG (Report to Suspend Favorable Personnel Action - DA Form 268) was initiated against the applicant.  On 13 November 1989, the applicant's commander initiated action to separate him for misconduct (commission of a serious offense) under the provisions of chapter 14, Army Regulation (AR) 635-200.  On 21 December 1989, a board of officers convened to determine whether the applicant should be separated for misconduct.  The applicant appeared with legal counsel.  After 7 hours of testimony and deliberation, the board found that the applicant committed a serious offense, to wit:  six DUI's.  The board recommended that he be separated for misconduct with an honorable discharge.

In an undated endorsement to the separation action, the approving authority approved the applicant's separation for misconduct and directed issuance of an honorable discharge.  The applicant was separated with an honorable discharge on 5 January 1990 under the provisions of chapter 14, AR 635-200 for misconduct - commission of a serious offense.  He had 14 years, 1 month, and 11 days of creditable active Federal service, and 1 year, 3 months, and 24 days of inactive service.

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, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

Public Law 102-484, the Fiscal Year 1993 Defense Authorization Act, was enacted on 23 October 1992.  Section 4403 of that law gave the Military Departments the authority to permit early retirement (Temporary Early Retirement Authority, or TERA) of selected military members with more than 15, but less than 20 years of active Federal service who agreed to register for employment in public or community service organizations.

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.  On 5 October 1989, a FLAG was imposed against the applicant and, on 5 January 1990, he was administratively separated for misconduct under the provisions of chapter 14, AR 635-200.  Had he been otherwise eligible for TERA, the FLAG and his separation under chapter 14 effectively prevented him from any form of retirement.

2.  The TERA was not enacted into law until 23 October 1992; the applicant was separated on 5 January 1990.  The TERA only involved selected soldiers with more than 15 years, but less than 20 years of active Federal service; the applicant had less than 15 years of active Federal service.  The applicant never qualified for the TERA.

3.  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

_RVO___  ___JPI __  __WDP __  DENY APPLICATION

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

INDEX

CASE ID	AR2001062435	
SUFFIX		
RECON		
DATE BOARDED	20011129	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19900105	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	A60.00	
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	136.0500	
2.		
3.		
4.		
5.		
6.