MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 August 2002
	DOCKET NUMBER:   AR2002071620

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		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 general discharge be upgraded to honorable.

APPLICANT STATES:  That he did not receive a fair hearing before being discharged and contends that the approving authority only heard one side.  He goes on to state that the Board should find it in the interest of justice to upgrade his discharge because every man or woman deserves a fair shot at justice.  He also states that he made a mistake in his actions but justice was not upheld by only allowing one side to be heard.

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

He enlisted in Jacksonville, Florida, on 15 October 1992, for a period of 3 years and training as a cannon crewmember.  He completed his training at Fort Sill, Oklahoma, and was transferred to Fort Riley, Kansas.

On 20 April 1993, nonjudicial punishment (NJP) was imposed against him for striking another soldier with his fist.  His punishment consisted of 6 days of extra duty.

The applicant was advanced to the pay grade of E-4 on 15 December 1994 and on 3 February 1995, NJP was imposed against him for the wrongful use of marijuana between 28 October and 28 November 1994.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 14 February 1995, the applicant’s commander initiated a recommendation to bar the applicant from reenlistment.  He cited the applicant’s disciplinary record as the basis for his recommendation.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 3 March 1995.  The applicant elected not to appeal the bar.

On 19 May 1995, NJP was imposed against him for being disrespectful in language and deportment towards a noncommissioned officer.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 20 June 1995, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  He cited the applicant’s disciplinary record and his failure to respond to numerous counseling sessions as the basis for his recommendation.

After consulting with counsel, the applicant elected to submit a statement in his own behalf.  However, the evidence of record indicates that he failed to do so.

The appropriate authority approved the recommendation for discharge on 6 July 1995 and directed that he be furnished with a General Discharge Certificate.

Accordingly, he was discharged under honorable conditions on 26 July 1995, under the provisions of Army Regulation 635-200, paragraph 14-12C(2), for misconduct.  He had served 2 years, 9 months and 12 days of total active service.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 2 March 1996.  He asserted at that time that he had made some bad mistakes and decisions, but that he had paid severely for them.  He went on to state that he joined the Army to earn money for college and without an upgrade of his discharge, he would be unable to use those benefits.  The ADRB opined that he had been properly and equitably discharged and voted unanimously to deny his request on 11 March 1997.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.  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.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted and appear to be without merit.  He was afforded the opportunity, with the assistance of counsel, to submit matters in his own behalf at the time of the administrative separation processing and failed to do so.  Therefore, the appropriate authority based his decision to 

discharge him based on the evidence of record at the time.  Inasmuch as the applicant offered no evidence that disputed the evidence provided by the recommending commander, the Board finds that his service did not warrant a fully honorable discharge and that the decision made by the discharge authority was proper.  

4.  Accordingly, the applicant has failed to convince the Board through the evidence submitted with his application or the evidence of record that his discharge was unjust and should be upgraded.

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

___ls ___  __pm ___  __dh____  DENY APPLICATION

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

INDEX

CASE ID	AR2002071620	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/06	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1995/07/26	
DISCHARGE AUTHORITY	AR635-200/CH14	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.