MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            6 May 2003        
	DOCKET NUMBER:   AR2003085970

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Larry C. Bergquist		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 discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  That he was unjustly discharged.  He provides no supporting evidence.

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

He enlisted on 5 April 1999 for, in part, a $12,000 enlistment bonus.  He completed basic training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  

Between July 1999 and February 2000, the applicant was counseled on eight different occasions for infractions including missing accountability formation, missing physical training formation, falling asleep on fireguard duty in a 10-man Arctic tent with the stove burning, falling asleep on road guard, being absent without leave (AWOL), and missing movement.

On 24 November 1999, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for three specifications of failing to go to his appointed place of duty.  

The applicant departed AWOL on 10 December 1999.  He returned to military control on 10 January 2000.

On 1 March 2000, the applicant completed a mental status evaluation and was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

On 14 March 2000, the applicant accepted nonjudicial punishment under Article    15, Uniform Code of Military Justice for being AWOL from 10 December 1999 to on or about 3 January 2000.  

The applicant completed a separation physical and was found qualified for separation. 

On 26 July 2000, the commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct due to a pattern of misconduct.  He recommended the applicant receive a discharge UOTHC. He recommended the requirement for a rehabilitative transfer be waived as the applicant was resisting rehabilitation attempts.

On 7 August 2000, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He waived consideration of his case by an administrative separation board conditional upon his receiving a general discharge.  He submitted a statement in his own behalf.  He stated that he always did what he was ordered to do except for one time, when an E-7 gave him an order countermanding something an E-5 told him to do.  The only problems he had were being where he needed to be when he was needed to be there and going AWOL once.  He stated that his pay decreased severely after September 1999, when he received his enlistment bonus.  He was married and had a stepson and could not even afford to buy them a Christmas tree.  He repeatedly tried to start his separate rations and cost of living allowance but nothing happened.  So, on 9 December 1999, he moved his family from Fort Wainwright, Alaska to Michigan.  He hoped the commander would grant this waiver so he could provide for his family (with a son on the way in September 2000) like a civilian would.

On 5 September 2000, the separation authority disapproved the applicant's request for a conditional waiver and directed an administrative separation board be appointed.  

On 19 September 2000, the applicant waived his right to a hearing before an administrative separation board.  

On 27 September 2000, the separation authority approved the recommendation for separation and the unconditional waiver and directed the applicant receive a discharge UOTHC.

On 29 September 2000, the applicant was discharged, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  He had completed 1 year, 5 months, and 25 days of creditable active service.  His      DD Form 214 (Certificate of Release or Discharge from Active Duty) does not show his lost time.  

On 26 February 2003, the Army Discharge Review Board (ADRB) voted, in a unanimous decision, to deny the applicant’s request for an upgraded discharge.

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 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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.  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 indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to appear before an administrative separation board and waived his right to that board.

3.  The Board has considered the applicant's statement, submitted with his discharge packet, concerning his pay and family concerns.  However, the Board also considered his numerous infractions of military discipline and it appears to the Board that the characterization of his discharge as UOTHC was and still is appropriate.  His overall record of service does not merit upgrading his discharge.  

4.  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

__fne___  __lem___  __lcb___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085970	
SUFFIX		
RECON		
DATE BOARDED	20030506	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	20000929	
DISCHARGE AUTHORITY	AR 635-200, ch 14	
DISCHARGE REASON	A64.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.