MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 October 2002                 
	DOCKET NUMBER:    AR2002072702

	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. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able 		Member	
	Mr. John T. Meixell		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 records be corrected to eliminate any reference to his AWOL (absence without leave), assault on a NCO (noncommissioned officer) and “further rehabilitative efforts.”  He also requests, in effect, upgrade of his discharge to honorable.

APPLICANT STATES: That the assault on an NCO should not be classified as assault solely on the NCO’s impression.  The MP (military police) blotter does not specify the nature of the report.  The statements contained in minutes “taint” and unfairly bias him.  The record shows none of the attributes, only detractors.  He indicates he is incarcerated and wishes to enroll in long term education program and cannot afford class fees.  An upgraded DD Form 214 (Certificate of Release or Discharge from Active Duty) will extend his GI Bill for 10 years.

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

During the period 2 September to 8 November 1987, he was in the Army Reserve Delayed Enlistment Program.

On 9 November 1987, the applicant enlisted in the Army for 4 years.  He completed his required training and was awarded military occupational specialty 13B (Cannon Crewmember).  He was advanced to pay grade E-4 effective         1 January 1990.

During the period 4 March 1988 to 5 December 1990, he served in Germany.

On 26 January 1989, he was administered nonjudicial punishment (NJP) under Article 15, Uniform code of Military Justice for his failure to go to his appointed place of duty on 20 January 1989.  His punishment included extra duty for         14 days and restriction for 14 days (suspended for 1 month).

On 4 October 1990, he was administered NJP for being AWOL during the period 26 August to 12 September 1990, for assault on an NCO on 29 July 1990 and for disobeying a lawful order on 29 July 1990.  His punishment included a reduction to pay grade E-3, forfeiture of $350.00 pay and extra duty for 30 days.

On 11 October 1990, a psychiatric examination cleared him for separation.

On 15 October 1990, a mental status evaluation cleared him for separation.

On 30 October 1990, his commander advised him that he was initiating action to discharge him under the provisions of Army Regulation 635-200, chapter 14, based on his pattern of misconduct and of his rights in this matter.  In addition to this, the applicant has received numerous derogatory counseling statements concerning his off duty behavior, lack of initiative, lack of motivation, lack of discipline, failure to accept responsibility, substandard personal appearance, substandard job performance, poor attitude towards the military, failure to maintain registration of his POV, operating an unregistered vehicle, fleeing the scene of an accident, being overdrawn on his checking account and frequent accounts of missing formations and being late to his appointed place of duty.

On 30 October 1990, after consulting with legal counsel, he acknowledged that he had been advised of his commander’s action.

On 16 November 1990, the appropriate separation authority approved the discharge and directed reduction to the pay grade E-3.

On 6 December 1990, he was discharged, in pay grade E-3, under the above-cited regulation, based on his misconduct, with a General Discharge.  His separation document indicates he had 3 years and 28 days of creditable service, and 17 days of lost time.

On 15 March 2002, the Army Discharge Review Board reviewed his request for upgrade and found his discharge to be proper and equitable and denied his request.

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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

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 applicant is not entitled to an upgrade of his discharge to honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His discharge was clearly caused by his misconduct and there is no evidence available to indicate that the NJP was improperly administered.

4.  The Board has noted the applicant’s contentions; however, he has not provided justification for eliminating the adverse entries from his records as he requested.

5.  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.

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____  _RWA___  _JTM___ DENY APPLICATION

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

INDEX

CASE ID	AR2002072702	
SUFFIX		
RECON		
DATE BOARDED	20021010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.		
3.		
4.		
5.		
6.