MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           13 August 2002                  
	DOCKET NUMBER:   AR2002073320

	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. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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 general discharge under honorable conditions be upgraded to fully honorable.

APPLICANT STATES: In effect, that his command failed him by not allowing emergency leave when he heard his grandmother was dying of cancer.  He went AWOL (absent without leave) to see her.  Later, the Red Cross verified the emergency and he was allowed to go on leave.  Upon her passing, he was not allowed adequate time to mourn. 

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

On 27 November 1995, the applicant enlisted in the Army for 4 years.  He completed his required training and was awarded military occupational specialty 45K (Armament Repairer).

During the period 2 October 1996 to 12 February 1997, the applicant was formally counseled on 9 occasions for disobeying lawful orders, for his failure to follow instructions, for his failure to go to his appointed place of duty and for his failure to shave.

On 7 April 1997, he was convicted by a Summary Court-Martial of being AWOL for the period 3 to 29 March 1997; his failure to go to his appointed place of duty on 31 March 1997; and his willful disobedience of lawful orders on 22 January and 12 February 1997.  His sentence included a reduction to pay grade E-1 and confinement for 12 days.

On 7 May 1997, a physical examination cleared the applicant for separation.

On 27 June 1997, a mental status evaluation cleared the applicant for separation.

On 21 October 1997, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice for making a false official statement on             12 August 1997; disobeying a lawful order on 13 August 1997; and for his failure to go to his appointed place of duty on 9 and 10 August 1997.  His punishment was 14 days extra duty. 

On 12 November 1997, 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.  The applicant consulted with legal counsel and was advised of the impact of the discharge action.  He did not submit a statement in his own behalf.

On 2 December 1997, the appropriate separation authority approved the discharge and directed reduction to pay grade E-1.

On 10 December 1997, he was discharged, in pay grade E-1, under the above-cited regulation with a discharge under honorable conditions.  His separation document indicates he had 1 year, 11 months and 18 days of creditable service and 26 days of lost time.

On 2 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 fully 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.  His contentions have been noted; however, 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.

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

_LEM___  __TSK___ __FNE___ DENY APPLICATION

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

INDEX

CASE ID	AR2002073320	
SUFFIX		
RECON		
DATE BOARDED	20020813	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.