MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 April 2003 
	DOCKET NUMBER:   AR2003086112

	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. William Blakely		Analyst	

The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Yolanda Maldonado		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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was informed that 6 months from the date of his separation from the Army his discharge would be upgraded to an HD. 

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

On 12 July 1995, the applicant entered the Army for a period of 3 years.  He successfully completed training and was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  

The applicant’s record shows that the highest rank he attained while serving on active duty was private/E-2.  It also shows that during his active duty tenure, he earned the following awards:  National Defense Service Medal; Army Service Ribbon; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

The applicant’s disciplinary record for the enlistment under review includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.  The first NJP was for two specifications of wrongfully using marijuana, and the second was for three specifications of failing to report to his appointed place of duty.  

On 10 July 1996, the applicant was notified of his unit commander’s intent to initiate action to separate him under the following provisions of paragraph 14-12c, Army Regulation 635-200, for the commission of a serious offense.  The unit commander stated that the basis for the contemplated separation action was the applicant’s record of NJP.  

On 16 July 1996, the applicant acknowledged receipt of the separation action notification.  He consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of waiving those rights.  Subsequent to this counseling, he completed his election of rights by waiving his right to have his case considered by and to appear before an administrative separation board; and he elected not to submit a statement in his own behalf.

On 25 July 1996, the separation authority approved the separation action and directed that the applicant be discharged for commission of a serious offense under the provisions of paragraph 14-12c of Army Regulation 635-200.  He also directed that the applicant receive a GD. 

On 28 August 1996, the applicant was discharged accordingly.  At the time of his separation, he had completed a total of 1 year, 1 month, and 17 days of creditable active military service.  

On 5 March 2003, the Army Discharge Review Board determined the applicant’s discharge was proper and equitable, and it denied his request for an upgrade of the character of his 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.  An honorable or general discharge may be awarded; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.

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 evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the Board concludes that the applicant’s discharge is appropriate and accurately reflects the overall quality of his service.  

2.  The Board notes the applicant’s contention that he was told that his discharge would be upgraded six months after his discharge.  However, it finds no evidence to support this claim.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or this Board, requesting a change in discharge.  Changes may be warranted if a Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Board finds no such conditions exist in this case and in view of these facts, an upgrade to the applicant’s discharge is not warranted at this time. 

3.  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.  

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

__rtd  ___  __ym ___  __jhl____  DENY APPLICATION

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

INDEX

CASE ID	AR2003086112	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/15	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1996/08/28	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Commission of a serious offense	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 671	144.6730	
2.		
3.		
4.		
5.		
6.