MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             31 July 2003                 
	DOCKET NUMBER:    AR2003086479

	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	
	Ms. Yvonne J. Foskey		Analyst	

  The following members, a quorum, were present:

	Ms. Karen A. Heinz		Chairperson	
	Mr. Robert L. Duecaster 		Member	
	Ms. Gail J. Wire 		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 believes he is entitled to an upgrade of his discharge because he was not at fault for the incident that resulted in his discharge.  He further states that the other individual involved in the incident received an HD.  

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

On 17 October 1991, he enlisted in the Regular Army for five years.  He successfully completed basic training at Fort Knox, Kentucky.  He attended advanced individual training (AIT) at Fort Sam Houston, Texas, to train in military occupation specialty (MOS) 91R (Veterinary Food Inspector).  However, he was dropped from this course and reassigned to Fort Lee, Virginia, to attend AIT in MOS 77F (Petroleum Supply Specialist), which he successfully completed. 

The applicant’s records show that the highest rank he attained while serving on active duty was private/E-2.  The record also shows that during his active duty tenure he earned the National Defense Service Medal, and the Army Service Ribbon.  There are no other acts of valor, significant achievement or service warranting special recognition during his active duty tenure.  

The record does reveal an extensive disciplinary history that includes the applicant’s acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), which resulted in reduction in grade to private/E-1.  In addition, the record shows he received formal counseling from members of his chain of command on ten separate occasions, between 10 July and 1 September 1992, for a myriad of disciplinary infractions.

On 11 September 1992, his unit commander notified the applicant that separation action was being initiated on him for a pattern of misconduct.  This recommendation was primarily based on the applicant’s frequent insubordination, failure to obey orders, and absenteeism from his place of duty.  It also documented the extensive counseling the applicant received from various members of the chain of command, and his record of NJP.  

On 17 September 1992, the applicant consulted with legal counsel, and after being advised of the basis of the contemplated separation action, he completed an election of rights.  He elected to waive consideration of his case by a board of officers and representation by counsel.  He also chose not to submit a statement of rebuttal in his own behalf.

The separation authority approved the applicant’s separation and directed that he receive a GD.  On 2 October 1992, the applicant was discharged accordingly.  

The DD Form 214 issued to the applicant on the date of his separation shows that he received a GD, under the provisions of paragraph 14-12b, by reason of misconduct.  It also shows that at the time of his separation, he held the rank of PV1, and he had completed a total of 11 months, and 16 days of creditable active military service.  

On 5 February 1996, the Army Discharge Review Board found that the characterization and reason for the applicant’s discharge were both proper and equitable, and it voted to deny his request that his GD be upgraded to an HD. 

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.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board notes the applicant’s contention that he was not at fault for his discharge.  However, the record shows that he was notified of the contemplated separation action by his unit commander, consulted legal counsel, and was advised of the basis for the contemplated separation action and of its possible effects.  In addition, subsequent to this counseling, he elected to waive his right to have his case considered by a board of officers.

2.  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.  Further, it finds that the character of the applicant’s discharge accurately reflects his overall record of service.  Therefore, the Board concludes that an upgrade to his 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

__RLD___  __KH___  __GJW___  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.