PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 October 1999                   
	DOCKET NUMBER:   AR1999031182

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Ms. Kathleen A. Newman		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge be upgraded from general under honorable conditions to fully honorable.

3.  With his application to the Army Discharge Review Board (ADRB), the applicant stated that he was going through a divorce when he transferred to Hawaii.  His wife caused all kinds of problems.  He was going into bankruptcy because of her.  His divorce became final, his ex-wife disappeared with the children, and his attorney advised him not to pay child support.  His command ordered him to pay.  Because of the conflict between his chain of command and his attorney he received an Article 15 and was reduced from Sergeant to Specialist.  He was barred from reenlistment and he asked to be chaptered out for failure to overcome a bar but his request was denied.  He then did something on purpose so he could receive another Article 15 so he could be reduced again and get chaptered out.  If it were not for his ex-wife he would probably still be in today.  He had an exceptional military record until he was stationed in Hawaii.

4.  The applicant's military records show that he enlisted in the Regular Army on 8 January 1993.  He was honorably discharged on 16 October 1996 for the purpose of immediately reenlisting on 17 October 1996 for 3 years.  On             26 November 1996, he extended his reenlistment an additional 9 months to meet the service remaining requirement for assignment to Hawaii.

5.  On 24 December 1997, while in Hawaii, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for disobeying a lawful command from his superior commissioned officer by failing to comply with his separation agreement, by failing to start an allotment to pay his debts (for furniture) and to pay one-half of his car insurance and for being disrespectful in deportment towards his superior non-commissioned officer.  His punishment was a reduction to pay grade E-4 and a forfeiture of $600 pay, suspended, and extra duty and restriction for 45 days.  

6.  On 15 January 1997, the applicant’s suspended reduction was vacated when he disobeyed a lawful order to supervise a private while on extra duty.  

7.  The bar to reenlistment documentation and the second Article 15 the applicant mentions are not available.

8.  On an unknown date, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  

9.  The applicant was advised of the basis for his contemplated separation and its effects, requested consulting counsel and elected not to submit a statement in his own behalf.  

10.  The appropriate authority waived the rehabilitative transfer requirement, approved the recommendation and directed the soldier be issued a general discharge.

11.  On 1 July 1998, he was discharged, in pay grade E-3, under the provisions of Army Regulation 635-200, Chapter 13, unsatisfactory performance, with a general discharge.  He had completed 5 years, 5 months and 24 days of creditable active service and had no lost time.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  Chapter 3 of that regulation states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel.  The general discharge is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  On 17 September 1999, the ADRB denied the applicant’s request to upgrade his discharge.

CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable laws and regulations in effect at the time of his separation.

2.  The Board notes the applicant’s own statement that he did something on purpose so he could receive another Article 15 so he could be reduced again and get chaptered out.  The Board concludes it is unrealistic for the applicant to believe he should receive a fully honorable discharge when he deliberately set out to do something wrong.  Therefore, it would not be appropriate to change the records to show that the applicant was discharged honorably from the reenlistment commencing on 17 October 1993.  

3.  However, it appears that the applicant’s honorable discharge of 16 October 1996 should be considered as having been issued as a complete and unconditional separation.  The circumstances of his honorable discharge on         16 October 1996 may work an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 16 October 1996.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__mkp___  __gdp___  __kan___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Margaret K. Patterson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999031182	
SUFFIX		
RECON		
DATE BOARDED	19991027	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19980701	
DISCHARGE AUTHORITY	AR 635-200, ch 13	
DISCHARGE REASON	A92.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.