MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 March 2001
	DOCKET NUMBER:   AR1999030404

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		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, in effect, his general, under honorable conditions, discharge be upgraded to honorable, receipt of severance pay, and correction of his promotion to sergeant (SGT) E-5.

APPLICANT STATES:  That, in effect, he saw the orders promoting him to SGT E-5 and does not understand why he was not promoted.  He further states that he never received any punishment under the provisions of the Uniform Code of Military Justice (UCMJ) and had no pattern of misconduct causing the commander to initiate an administrative separation under the provisions of Army Regulation 635-200, chapter 14.  He provides a one-page chronology of events and a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

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

He enlisted in the Army on 27 February 1985 for 3 years.  He completed his initial training and was assigned to the Federal Republic of Germany (FRG) for duty as a cannoneer (13B).  He extended his active duty enlistment for the purpose of completing his tour of duty in the FRG.  Upon completion of his overseas tour he was reassigned to Fort Sill, Oklahoma.  On 13 December 1989 the applicant reenlisted in the Army for another 3 years.

On 18 July 1991 the applicant’s commander initiated a bar to reenlistment.  The basis for this action included numerous letters of indebtedness with and without counseling statements, and general counselings for personal hygiene, missing formation, failure to follow orders, disobeying a lawful order, and for being out of ranks.  The applicant responded to the bar on 19 August 1991 indicating his desire to appeal the commander’s decision.

On 26 August 1991 the applicant submitted his appeal to the bar to reenlistment citing that he was a single parent who had taken action to resolve his debts by filing for bankruptcy in May 1991.  He further contended that his actions were prior to the commander’s initiation of the bar to reenlistment and that he had not created any new debts.  The appeal was processed through his chain of command and denied.

On 1 September 1991 the applicant met the promotion list cut off score for promotion to the rank and pay grade of sergeant E-5.  Orders 235-529, Headquarters, United States Field Artillery Center and Fort Sill, dated 23 August 1991, promoted the applicant provided he was in a promotable status on the effective date of 1 September 1991.  However, due to his bar to reenlistment he was not in a promotable status.

On 18 February 1992 the applicant was convicted by special court-martial for failure to repair and for disrespect to a noncommissioned officer.  The sentence included a reduction to private E-2 and a forfeiture of $400.00 per month for 
2 months.

On 24 February 1992 the commander notified the applicant of his intent to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for acts or patterns of misconduct.  He acknowledged the notification on 27 February 1992, indicating that he desired to consult with counsel.

On 25 March 1992 the applicant was notified that a board of officers would convene on 16 April 1992 to determine whether he should be discharged from the service for patterns of misconduct.  The applicant with counsel appeared before this board.  After examination of the evidence presented the board found that the applicant committed acts or patterns of misconduct and was undesirable for retention in the military service.  It recommended that the applicant be discharged from the military service with a General Discharge Certificate.

On 5 May 1992 the appropriate authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate.

Accordingly, on 14 May 1992 the applicant was discharged under honorable conditions.  He completed 7 years, 5 months and 18 days of creditable active service.  The applicant did not receive any separation pay.

On 27 February 2001 the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 9 March 2001 the ADRB denied the appeal.

Army Regulation 600-200, in effect at the time, prescribed policies and procedures for enlisted personnel promotions and reductions.  Paragraph 7-6n provided that individuals barred to reenlistment were not eligible for promotion.

Army Circular 635-92-1 outlines separation pay eligibility criteria.  Appendix E, Table E-3, of that circular provides that individuals separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct, are not eligible for separation pay.

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.
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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

3.  Regulatory guidance clearly denied authorization for separation pay to individuals discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  Therefore, his contention that he should have received this pay has no merit.

4.  Even though promotion orders were published indicating that the applicant was promoted to sergeant E-5, they were not valid due to his bar to reenlistment. Therefore, his contention that he was promoted to sergeant E-5 has no merit. 

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

_FNE___  __RJW___  __WDP___  DENY APPLICATION

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

INDEX

CASE ID	AR1999030404	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010320	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19920514	
DISCHARGE AUTHORITY	AR 635-200, chapter 14  .  	
DISCHARGE REASON	Patterns of Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A67.50	
2.	128.08	
3.	131.00	
4.		
5.		
6.