MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:          

	BOARD DATE:              24 February 2000                
	DOCKET NUMBER:      AR1999030078

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Cekia L. Adolphi  		Chairperson	
	Mr. James P. Huber 		Member	
	Ms. Margaret V. Thompson		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 his discharge should show honorable because the regulation he was accused of violating was invalid.  He has enclosed a letter from a member of Congress and a memorandum from his defense counsel at the time in support of his request.

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

On 18 January 1983, while assigned to Fort Lewis, Washington, the applicant reenlisted in the Regular Army for 3 years.  At the time of his reenlistment he was performing duties in military occupational specialty (MOS) 11C (Indirect Fire Infantryman), he had attained the rank of specialist/E-4, and he had completed an overseas tour in Germany.  In addition, during his first term of service the applicant accepted nonjudicial punishment, under the provisions of Article 15 of the UCMJ, for assaulting another soldier.

He was awarded the Army Good Conduct Medal on 20 January 1983 and was promoted to the rank of sergeant/E-5 on 8 November 1983.  His disciplinary record for the period of enlistment under review includes his acceptance of NJP on three separate occasions, an imposed bar to reenlistment, and numerous formal counseling statements for a myriad of disciplinary infractions. 

On 21 April 1983, the Commandant of the Noncommissioned Officer (NCO) Academy at Fort Lewis, Washington, published a letter, Subject: Academic Release of Student, pertaining to the applicant.  The letter indicated that the applicant was being released from Class 6-83 of the Combat Arms, Basic Noncommissioned Officer Course (BNCOC), based on his failure to meet the minimum academic requirements.  

On 3 May 1984, the applicant’s platoon leader, a 1st Lieutenant, relieved him of his duties as a squad leader, based on his failure to perform his duties.  The platoon leader explained that his performance had been steadily decreasing for several months, and had reached the point where his squad was being run by one of his junior soldiers.  

On 22 May 1984, the applicant accepted NJP for failing to go to his prescribed place of duty.  His punishment for this offense included a forfeiture of $219.00 per month for 2 months, and 14 days of restriction and extra duty.  

On 26 June 1984, he accepted NJP for violating a lawful general regulation by carrying a concealed weapon (357 Magnum).  His punishment for this offense was a reduction in rank to specialist/E-4 and a forfeiture of $444.00 per month for 3 months.
On 31 July 1984, a bar to reenlistment was imposed on the applicant based on his poor duty performance, repeated tardiness for work, and disregard for regulations.  

On 20 September 1984, he accepted NJP for behaving with disrespect toward a superior commissioned officer.  His punishment included a forfeiture of $100.00 per month for 2 months and 30 days of extra duty.

On 5 December 1984, the applicant was notified by his unit commander that separation action was being initiated, under the provisions of Chapter 13, 
Army Regulation 635-200, by reason of unsatisfactory performance of duty.  The applicant was advised that he had the right to legal counsel and he consulted the same day.  He was advised by counsel of the basis for the contemplated separation action and its effects, and of the rights available to him.  The applicant completed his election of rights by requesting counsel and submitting a statement on his own behalf.

On 17 December 1984, the unit commander submitted his recommendation that the applicant be separated for unsatisfactory duty performance.  He cited the applicant’s exhibited defective attitude and inability to expend his efforts effectively, as his reason for taking the action.  The commander further commented that the applicant had failed to respond to individual attention from his NCO’s, extensive formal counseling efforts, and NJP, and still continued to show no improvement.  

On 17 December 1984, the applicant’s defense counsel prepared a memorandum for record, in which he takes the position that the NJP accepted by the applicant in June 1984, for violating a general regulation, was invalid because the Fort Lewis supplement to the regulation on which it was based had not been approved at the Army’s Forces Command (FORSCOM).  There is no indication that this issue was ever properly pursued through legal channels or that defense counsel’s objection and argument were ruled on by the Staff Judge Advocate or any other appropriate legal authority.  What is clear from the record is that this memorandum was part of the separation packet that was finally reviewed and approved.

On 18 December 1984, the appropriate authority approved the applicant’s separation for unsatisfactory performance and directed that he receive a GD.  
At the time of his discharge the applicant had completed 1 year, 11 months, and 
15 days of his current enlistment; and a total of 4 years, 11 months, and 12 days of active military service.

There is no indication in the record that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge within the 
15 year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  Army policy states that a general discharge, under honorable conditions is normally considered appropriate.

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 contention that he should have received an honorable discharge and that a NJP he accepted was invalid.  However, the Board determined that these claims are not supported by either the evidence of record or the independent evidence submitted by the applicant.  

2.  The evidence or record clearly shows a widespread pattern of poor duty performance and misconduct on the applicant’s part, and the Board determined that his separation could not be solely attributed to one NJP action.  Therefore, the Board concluded that an upgrade to the applicant’s characterization of service is not warranted. 

3.  After carefully examining the record, the Board found that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time, and the character of the discharge is commensurate with his overall record of military service.

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 the aforementioned 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

__cla____  ___mvt___  ___jph__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030078	
SUFFIX		
RECON		
DATE BOARDED	2000/02/24	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1985/01/03	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	Unsatisfactory Performance	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.