MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 June 2000                  
	DOCKET NUMBER:    AR1999032621

	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. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. James C. Hise		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		Member	
	Mr. Melvin H. Meyer		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 discharge be upgraded to honorable and block 15.a (Member Contributed to Post-Vietnam Era Veteran’s Educational Assistance Program) of his DD Form 214 be corrected to show that he did contribute.

APPLICANT STATES:  That one mistake caused by himself trying to protect his wife from sexual harassment should not wipe out the rest of his record as a good soldier.  He continues that he was having marital problems.  His wife told him that she was being sexually harassed.  He confronted the individual, which led to a fight for which he received an Article 15.  Following that, he was late to formation, which cost him a stripe.  He became depressed and attempted suicide which resulted in a stay in the hospital and started the chain of events leading to his discharge.  He and his wife eventually divorced.

He contends also that he contributed to an education fund through the Army but can’t use any benefits unless his discharge is upgraded to honorable.

In support of his request, he has provided four character reference letters from his civilian employer and customers of his employer all of which are very complimentary of his character, performance and work habits; a Letter of Appreciation from his former garrison commander at Fort Carson for his excellent participation in a mobilization exercise and several Certificates of 
Appreciation and Certificates of Training from various armor and cavalry organizations.  

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

He enlisted on 22 February 1995, received training as a cavalry scout and served at Fort Carson, Colorado and Fort Polk, Louisiana.  He received a general discharge under honorable conditions for patterns of misconduct on 11 April 1997.  The DD Form 214 he was issued at that time, had item 15a, “Member contributed to Post-Vietnam Era Veterans’ Educational Assistance Program” (VEAP) marked “No.”

On 20 March 1997 the applicant’s commander advised him that he was initiating action to separate him from the service based on a pattern of misconduct.  The specific reasons for the commander’s actions included: nonjudicial punishment for assault; the vacation of the suspended punishment from that action for disobeying a lawful order; and on 15 occasions between 12 August 1996 and      3 February 1997, counseling for a variety of infractions, including failure to repair, failure to obey a lawful order, assault and mutual spouse abuse.

The applicant was advised of his rights.  He consulted with legal counsel, was advised of the impact of the discharge action and chose not to submit a statement on his own behalf.  
On 2 April 1997 the appropriate commander waived further rehabilitative efforts and directed that the applicant be separated with a general discharge.  On        11 April 1997 he was separated under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct with 2 years, 1 month and 20 days of active service.

On 2 July 1998 the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  

The VEAP was established and implemented on 1 January 1977, as a contributory education program designed to replace the Vietnam Era (pre-1977) G.I. Bill.  Any soldier entering the service between 1 January 1977 and 30 June 1985 was eligible to participate in the program.  Service must have been under honorable conditions.

The Montgomery G.I. Bill (MGIB), is the educational incentive that replaced the VEAP and is applicable to soldiers who entered the service after 30 June 1985. The program is administered by the Department of Veterans Affairs (VA).

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 letters of support submitted by the applicant while certainly complimentary of his current job performance, provide no issues or arguments that would provide a basis for upgrading his discharge.  

2.  The Board has noted the contentions of the applicant that he was an otherwise good soldier.  However, those contentions are not supported by either evidence submitted with the application or the evidence of record.  Further, the character of the discharge he received appears to be commensurate with his overall record of military service.

3.  The applicant’s records show that he entered active duty on 22 February 1995, therefore, in accordance with the instruction for indicating whether of not he participated in the VEAP, block 15.a of his DD Form 214 is properly marked “NO”.  Nonetheless, eligibility for veteran’s benefits, such as the educational benefit, are not within the purview of this Board to determine.  This is an issue that must be addressed with the Department of Veterans Affairs.

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 this 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

__jch____  ___rvo __  ___mhm_  DENY APPLICATION

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

INDEX

CASE ID	AR1999032621	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000601	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  103.01		
2.   144.60		
3.		
4.		
5.		
6.