MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 August 2000
	DOCKET NUMBER:   AR1999031693

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs 		Chairperson	
	Ms. Karol A. Kennedy 		Member	
	Mr. Ernest W. Lutz Jr.		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 her general discharge be upgraded to honorable.

APPLICANT STATES:  That neither her current chain of command, nor the legal service center, followed Army Regulation (AR) 635-200 in processing her separation.  She believes that she should be retained on active duty at another unit or base.  Essentially, she contends that she should have been given a rehabilitative transfer prior to approval of her separation action.  She also charges that a noncommissioned officer (NCO) conducted her mental health evaluation, which clearly violates the regulation in that a licensed psychologist or psychiatrist must conduct such evaluations.

In support of her request, the applicant submitted a number of documents indexed under Memorandum for Record 1 through 24 in the attached table of contents, along with her detailed statement.

EVIDENCE OF RECORD:  The applicant's military records are not available.  Information herein was obtained from the documents she submitted to the Board:

With 8 years prior National Guard and Army Reserve service, she enlisted on 29 May 1997 in the rank of specialist (E-4).  Her initial assignment upon entering active duty was Fort Lewis, Washington.

During the period November 1997 through January 1999, the applicant received four formal counseling statements concerning controlling her temper and anger management, disrespect to an NCO, failure to report to duty, disrespect to a commissioned officer, and lying to an NCO.

On 13 November 1997, the applicant was administered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for two specifications of failure to obey a lawful order, two specifications of being disrespectful in language and deportment toward an NCO, and being derelict in the performance of her duties.  Her punishment included reduction in rank to private first class.

On 2 March 1998, the applicant was administered NJP for four specifications of failure to report to her appointed place of duty, and being disrespectful to an NCO.  Her punishment included reduction in rank to private (E-1).

On 29 October 1998, the applicant’s commander imposed a bar to reenlistment on her for having a record of two NJP actions and for being counseled for disrespect to a commissioned officer.  The bar was approved by the special court-martial convening authority.

On 4 November 1998, the applicant received NJP for being disrespectful toward a commissioned officer and failing to obey a lawful order.  Her punishment included reduction in rank to private (E-2), which was suspended for 6 months.

A 26 January 1999 report of mental status evaluation determined that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, that she had the mental capacity to understand and participate in board proceedings, and she met the medical standards for retention in the Army.  The report was signed by the Chief of Mental Health, a Medical Corps colonel.

On 16 February 1999, the applicant was given NJP for failure to report to her appointed place of duty, making a false official statement to a commissioned officer and an NCO, failure to obey a lawful order, and being disrespectful toward a commissioned officer.  Her punishment included reduction in grade to private (E-1), which was suspended for 6 months.

On 15 March 1999, the applicant’s commander recommended she be discharged for misconduct under the provisions of AR 635-200, chapter 14.  The chain of command recommended that the requirement for a rehabilitative transfer be waived.  On 4 July 1999, the applicant appeared before a board of officers which supported the commander’s recommendation and recommended she be separated with a general discharge.  The separation authority, a lieutenant general, approved the recommendations and directed the applicant be issued a General Discharge Certificate.  

Since the applicant submitted her application prior to separation, her DD Form 214 (Certificate of Release or Discharge from Active Duty) and information thereon is not available.

AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  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.

The above regulation also establishes the requirement for rehabilitative measures, including reassignment, before initiating action to separate a soldier for a pattern of misconduct.  The requirement for rehabilitative transfer may be waived by the separation authority when further duty of the soldier or rehabilitation would not be in the best interests of the Army as it would not produce a quality soldier.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the Total Army Personnel Command (PERSCOM).  The Board was advised that the applicant’s case had no merit.  Her main contention is that her last organization did not grant her a rehabilitative transfer (waivable by the separation authority) as authorized by AR 635-200.  A review of the entire documentation submitted by the applicant shows this is the only true challenge in her application.

In the applicant’s rebuttal to the foregoing advisory opinion, she essentially disagrees with PERSCOM and again focuses on the command’s failure to grant a rehabilitative transfer.  She also contends that regulatory requirements were violated because her mental health evaluation was conducted by an NCO rather than a licensed clinical psychologist or psychiatrist.

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, it is concluded:

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

2.  The applicant’s contention that her chain of command violated regulatory procedures by not effecting a rehabilitative transfer is rejected.  The separation authority waived the requirement for such transfer, determining that, in her case, it had been clearly established that rehabilitation was impracticable or was unlikely to succeed.

3.  The foregoing is supported by the advisory opinion provided by PERSCOM.

4.  The applicant’s additional contention that her mental status evaluation was inappropriately conducted is also rejected.  The report of mental status evaluation was reviewed and authenticated by a Medical Corps colonel who was the Chief of Mental Health, Fort Lewis. As long as the document is signed by a psychologist or psychiatrist, in this case the chief of the clinic, this Board deems the comments contained therein to be the medical opinion of that health services 

professional.  In essence, he is agreeing with the evaluation of a person that he authorized to conduct the evaluation.  Had the enlisted evaluator detected any abnormality, she would, of course, have referred the case to her supervisor.

5.  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.

6.  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

__dsj___  __kak____  __ewl ___  DENY APPLICATION

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

INDEX

CASE ID	AR1999031693	
SUFFIX		
RECON		
DATE BOARDED	20000801	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19990319	
DISCHARGE AUTHORITY	AR635-200 CH14	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.