MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 August 2003 
	DOCKET NUMBER:   AR2003088662

	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. Victoria A. Donaldson		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Ronald J. Weaver		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 general discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that after he received a general court martial and served a sentence of 7 months of hard labor, he was not allowed to return to duty.

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

The applicant enlisted on 22 December 1982 for a period of 3 years.  He successfully completed one station unit training on 22 February 1983.  He served as a cannon crewman.  

The applicant received the Army Achievement Medal, the Army Service Ribbon, the Rifle M-16 Badge and the Hand Grenade Badge (Expert).

Records show that the applicant received an Article 15 on 6 March 1984 for missing guard duty and that he received another Article 15 on 14 March 1984 for one day of AWOL.

On 20 July 1984, the applicant was convicted by a general court-martial of 
possession and distribution of 2.99 grams of marijuana.   He was sentenced to confinement at hard labor for 9 months.

On 20 July 1984, the convening authority approved only so much of the sentence as provides for confinement at hard labor but suspended confinement at hard labor in excess of 7 months.  On 19 February 1985, the suspended portion of the sentence to confinement was vacated.

On 5 July 1984, the applicant was transferred to the Retraining Brigade at Fort Riley, Kansas.

While assigned to the Retraining Brigade, the applicant received a not rated period for one week, an unsatisfactory rating for one week and satisfactory ratings for five weeks with an overall rating of satisfactory. 

During his service at the Retraining Brigade, the applicant was found to be in violation of Article 92 of the Uniformed Code of Military Justice, possession of personal property with a value in excess of $75.00.  His punishment consisted of 7 days extra duty, 7 days restriction and forfeiture of 15 days of accrued Good Conduct Time.

On 19 December 1984, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 for misconduct.  The applicant waived his right to a hearing before a board of officers, waived representation by counsel and elected not to submit written documentation on his behalf.

The applicant underwent a psychiatric evaluation and medical examination and was cleared for administrative separation.

On 3 January 1985, the commander directed that the applicant be discharged under the provisions of Army Regulation 635-200 for misconduct and that the applicant be furnished a General Discharge Certificate.

On 7 January 1985, the applicant was discharged with a General Discharge Certificate under the provisions of Army Regulations 635-200, for misconduct.  He had served 1 year, 4 months and 4 days of active service with 191 days lost due to AWOL and confinement. 

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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, and convictions by civil authorities.  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.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 Board noted the applicant's claim that he was to be allowed to return to active duty after completing his period of confinement.  

2.  The Board determined that the applicant's performance and conduct while assigned to the United States Army Retraining Brigade, was not sufficient to warrant continuation of his military service.  Therefore, this claim is without merit. 

3.  The Board reviewed the applicant's record of service which included two Article 15 punishments, one general court-martial conviction and 191 days lost.  

4.  As a result the Board determined that the applicant's quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the Board concluded that the applicant is not entitled to an honorable discharge.

5.  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.  

6.  Based on all of the foregoing, the Board determined that the type of discharge and reason for separation were appropriate considering all the facts of the case.

7.  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 unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  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

__LLS___  __CLG__  ___RJW__  DENY APPLICATION

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

INDEX

CASE ID	AR2003088662	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030805	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.0200.0000	
2.		
3.		
4.		
5.		
6.