MEMORANDUM OF CONSIDERATION

           IN THE CASE OF:    

	BOARD DATE:         8 August 2002
	DOCKET NUMBER: AR2002072675

	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. Luis Almodova		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret V. Thompson		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 he would like to have his discharge upgraded from a General, Under Honorable Conditions, to an Honorable and his reenlistment code also upgraded.

APPLICANT STATES:  In effect, that he got a new first sergeant who didn't care for him that much, he (the applicant) was a very good soldier but had problems in garrison when he came out of the field.  He admits to getting speeding tickets and that his first sergeant told him to park his car.  The applicant thought he was in love with this lady and being young and stubborn, he did not listen to the first sergeant; so, the first sergeant gave him a chapter 13 (sic) discharge.  The applicant admits that he is more mature and sensible and he would like to have another chance and the choice to be able to again serve the United States of America.  

The applicant submitted the following in support of his application:  seven certificates and a letter.  The letter is a letter of commendation for exemplary performance of duty.  All certificates and the letter are related to post-service accomplishments.  In addition, the applicant submitted a self-authored letter to the Board to support his contentions and a copy of a permit to carry a handgun issued by the state of Tennessee.  Among the certificates are two certificates of recognition - one for having a grade point average between 3.0 and 3.4 at Knoxville College and the other for his performance evaluation; one certificate of participation - for his participation in Aikebu-Lan; three certificates of completion of training - one for completion of training in juvenile security, another for completion of a 10.5-hour GroupWise v5.2 Standards course, and the third for his participation in Emergency Response to Terrorism: Basic Concepts training; and a certificate of appreciation for doing an outstanding job in saving a youth's life.  

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

The applicant enlisted in the Army's Delayed Enlistment Program on 5 December 1986 and entered active duty for three years and 14 weeks on 13 January 1987 as a Private, pay grade E-1.  Following completion of Basic Combat Training, he completed Advanced Individual Training and was awarded the primary military occupational specialty (PMOS) 11B, Infantryman.  He was then assigned to C Company, 1st Battalion, 87th Infantry, at Fort Drum, New York, as his first duty station on 28 April 1987.

The applicant was promoted to Private First Class, pay grade E-3 on 13 January 1988.  This is the highest rank and pay grade that he held while on active duty.

On 24 March 1988, he received an Article 15 which was administered under the provision of the Uniform Code of Military Justice (UCMJ) for being absent from physical training formation.  He received 14 days extra duty and 14 days restriction as punishment.
 
On 31 October 1988, he again received punishment under the UCMJ for the commission of an unknown offense.  The UCMJ action is not available to the Board since it is not contained in his military personnel records.  The punishment apparently included a suspended reduction to the rank and pay grade of Private, E-2, since on 30 November 1988, the applicant again violated the UCMJ, and although he was found guilty, the commander did not impose any punishment.  Instead, he vacated the suspension that had been imposed on him in the
Article 15 that had been administered on 31 October 1988.

Before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about noted deficiencies which could lead to separation.  This is readily apparent in view of the fact that the applicant was counseled for a variety of reasons on 29 separate occasions.  The Board noted the command made an assessment of the applicant's potential for becoming a fully satisfactory soldier.  The evidence of record clearly established that the applicant was afforded every reasonable opportunity to overcome the noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.

On 15 May 1989, the applicant's unit commander notified the applicant that he was contemplating initiating action to separate him from the Army under the provisions of Paragraph 14-12b, AR 635-200 prior to the expiration of his term of service.  The specific factual reasons for the recommended action were that, the applicant had absented himself from his unit without authority on 24 March 1989.  In addition, the applicant had written a number of checks between October 1987 and May 1989 with insufficient funds to cover the payment of these checks.  Further, the applicant had been counseled on 29 different occasions between the dates of 23 July 1987 and 27 January 1989 for a variety of offenses punishable through non-punitive measures and/or court-martial under the UCMJ.  These violations include, as an example:  failing to comply with the orders of noncommissioned officers; unsatisfactory performance of duty; absenting himself from formations; absenting himself from his place of duty; absenting himself from remedial physical training formations; breaking restriction; missing movement to the unit's tactical location during an exercise; failing to comply with unit standard operating procedures concerning:  preparation for inspection, security of his

assigned living area, and the cleanliness and maintenance of his assigned living area.  Only four of the above referenced counseling forms contained anything positive about the applicant's motivation, soldier skills and performance of duty.  These positive counselings took place early in the applicant's service.

On 16 May 1989, the applicant was advised of his rights, he consulted with legal counsel, and was advised of the impact of the discharge action.  The record reveals that he waived his rights and elected to and submitted a statement in his own behalf.  In his statement, the applicant stated that he would be the first to admit, "that I have not been the best soldier in the company.  But I sure haven't been the worst either.  I have had some financial problems in the past, and I have been working hard to overcome them.  I do not feel I was given a chance to get myself together.  I have been paying off my bills.  I told the First Sergeant that by the end of May (1989) my bills will be taken care of.  The First Sergeant will not let me get myself together."  He further claimed that he had been told that, "As a soldier they tell me that I am a good soldier in the field, but in garrison I have written bad checks that I am paying for.  The checks are almost paid off.  My court fine is almost paid off."  He goes on to say that, "I believe that I should be given the chance to soldier.  I have never fallen out of any road marches and I have the highest PT score in the squad."  He asked the commander to reconsider and allow him to remain in the Army.

On 25 May 1989, the applicant's unit commander initiated action to separate him from the Army under the provisions of Paragraph 14-12b, AR 635-200 prior to the expiration of his term of service.  

On the same date, the intermediate commander reviewed the proposed discharge action and recommended approval of the action.  He recommended that the applicant's service be characterized as under honorable conditions.

On 1 June 1989, the separation authority approved the applicant's discharge under the provisions of AR 635-200, Chapter 14, Paragraph 14-12b.  He recommended that the applicant not be placed in the Individual Ready Reserve, as he had, in his opinion, no potential for useful service under conditions of full mobilization.  The separation authority also waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. 

The applicant was discharged on 13 June 1989 due to misconduct - Pattern of Misconduct, and he was issued a discharge characterized as Under Honorable (General).  On the date of his discharge, the applicant had 2 years, 5 months and 1 day net active Federal service.  He was awarded a Separation Code of "JKM" and a Reenlistment Code of "RE-3."  The applicant’s DD Form 214 (Certificate of

Release or Discharge from Active Duty) shows that he was assigned the appropriate SPD Code and Reenlistment Eligibility Code based on applicable regulations. 

The applicant applied to the Army Discharge Review Board (ADRB) for review and upgrade of his Under Honorable (General) discharge on 30 January 2002.  In his application to that board, he offered as issues of propriety or equity that, "It (his problems) all started when I started getting a lot of speeding tickets in New York State.  At the time I was seeing a lady that was in the US Army Reserve that used Ft Drum for a training center, so I would drive to New Jersey to see the young lady & on my way back I would be speeding so I could get back for formation at Charlie Company 1-87 Infantry Fort Drum, NY 10th Mountain Division.  I accumulated quite a few speeding tickets."  "I disappoint myself now because I would have loved to retire from the US Army.  It has been 12 years now.  I am a lot more mature and sensible and I would like to have a chance for the board to review this request so I could have the chance & the choice to be able to serve my United States of America." 

The Army Discharge Review Board determined that he had been properly discharged.  The ADRB denied his application and notified him of their decision on 3 May 2002.  The ADRB further notified him that since he had included a
DD Form 149, Application for Correction of Military Record, as part of his discharge review packet, his case was being referred to this Board for processing.

Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, the chapter under which the applicant was discharged, as opposed to his report that he was discharged under the provision of Chapter 13, 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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5 (Separation Documents) establishes the proper reentry codes to assign to soldiers separating from the Army.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE code, including RA RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification can be waived.  

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 contentions that the First Sergeant disliked him and that the First Sergeant wouldn't let him get himself together.  There is no evidence of record to support this contention.  The evidence of record clearly establishes that the applicant was afforded every reasonable opportunity to overcome noted deficiencies.  Since the applicant did not choose to conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service and initiated actions that resulted in his separation.

2.  The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.

3.  Finally, the Board considered the applicant’s entire record of service.  The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable.  Further, it has determined that the

quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general, under honorable characterization, to an honorable discharge.

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.  The Board notes the applicant’s letter of commendation and certificates that were submitted with his application outlining his successful accomplishments since separation from active duty.  The applicant is to be commended for his efforts; however, the Board found that these accomplishments did not overcome the discrediting entries in the applicant’s record and did not establish a basis upon which to grant relief.

6.  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

__rjw___  ___le___  __mvt___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072675	
SUFFIX		
RECON		
DATE BOARDED	20020808	
TYPE OF DISCHARGE	General	
DATE OF DISCHARGE	19890613	
DISCHARGE AUTHORITY	AR 635-200, Chapter 14  	
DISCHARGE REASON	A01.36	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000.0000	
2.	144.0000.0000	
3.	144.0136.0000	
4.		
5.		
6.