MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 August 2000
	DOCKET NUMBER:   AR1999032748

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Calvin M. Fowler		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 he be reinstated to active duty and allowed to finish his career. 

APPLICANT STATES:  In effect, that he was discharged for something that his wife did at the time and he would now like to clear his name and go on with his career.  He states that he was forced to hurry up and clear for separation and he was not allowed time to obtain a lawyer to defend him.  He also indicates that his wife was never brought in for questioning which may have cleared him of the charges.  He concludes that he was a good soldier who made a few mistakes and should now be allowed to finish his career.  

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

On 23 July 1981, he enlisted in the Regular Army.  He successfully completed basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort Lee, Virginia.  Upon completion of AIT he was awarded military occupational specialty 94B (Cook) and he remained at Fort Lee for his first permanent duty station.

The applicant’s Personnel Qualification Record (Department of the Army (DA) Form 2-1) documents no acts of valor, significant achievement, or service warranting special recognition for the period of enlistment under review. The DA Form 2-1 shows that the applicant completed two overseas tours in Germany and that he attained the rank of Sergeant/E-5 (SGT) on 14 October 1985, which is the highest rank he held on active duty.  In addition, it indicates that he was reduced to the rank of Specialist/E-4 (SP4) on 13 December 1988 and to Private/E-1 on 20 April 1989 in conjunction with his under other than honorable conditions discharge.

His disciplinary history includes his being confined by civil authorities for 17 days, between 18 November and 5 December 1988, his receipt of three Letters of Reprimand (LOR), and his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  

On 30 December 1987, the applicant received his first LOR for consuming alcoholic beverages with subordinate soldiers; on 22 July 1988 he received his second LOR for misconduct, based on his leaving the scene of an accident and his failure to assure safe movement; and on 25 July 1988 he received his third LOR for driving his privately owned vehicle with a suspended license.  

On 18 November 1988, the applicant was confined by civil authorities, in the Norfolk, Virginia City Jail, due to several unpaid traffic fines.  He was given the choice of paying the traffic ticket fines or going to jail, and he opted to be confined in lieu of paying the fines.  His time served in civil confinement was considered time lost.  
On 13 December 1988, the applicant accepted NJP for falsely making the signature of a Captain, with the intent to defraud.  His punishment for this offense included his reduction to the rank of SP4, a forfeiture of $370.00, and 45 days of extra duty.  

The unit commander notified the applicant of his intent to initiate separation action against him, under the provisions of chapter 14, Army Regulation 635-200, for misconduct.  On 29 December 1988, the applicant acknowledged receipt of the notification of separation action and he consulted legal counsel.  After being advised by counsel of the basis for the contemplated separation action and its effects, the applicant elected to have his case heard by an administrative separation board.

On 24 March 1989, an administrative separation board convened to consider the applicant’s case, with the applicant and his legal counsel present.  After carefully considering the presented evidence, the administrative separation board found that the applicant was undesirable for further retention in the service due to misconduct.  They further recommended that the applicant be separated under the provisions of chapter 14 of Army Regulation 635-200, and that he be issued an under other than honorable conditions discharge. 

On 20 April 1989, the appropriate authority approved the findings and recommendations of the administrative separation board, and directed that the applicant be discharged under other than honorable conditions and that he be reduced to the lowest enlisted grade.  

Accordingly, on 27 April 1989, the applicant was discharged.  The record contains a Department of Defense (DD) Form 214 (Certificate of Release or Discharge From Active Duty) that was issued to and signed by the applicant on the date of his discharge.  This form documents that he was separated by reason of misconduct and that his service was characterized as under other than honorable conditions.  It also verifies that he was discharged in the rank of 
PV1, after completing a total of 7 years, 8 months, and 18 days of active military service, and having accrued 17 days of time lost due to civil confinement. 

On 31 August 1989, the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper in all respects.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals 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 issuance of a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions. 

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 contentions that his wife committed the offense which resulted in his discharge and that he was separated without having been afforded the opportunity to obtain defense counsel.  However, the Board finds these claims lack merit and are not supported by either the evidence or record or the independent evidence submitted by the applicant.  

2.  The evidence of record shows that the applicant was counseled by and represented by legal counsel throughout his separation processing.  This included his appearance with his legal counsel before an administrative separation board which convened to consider his separation.  Therefore, the  Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Additionally, the Board finds that the character of the applicant’s discharge is commensurate with his overall record of service, and therefore, concludes that there is no basis for either restoring the applicant to active duty or for upgrading the discharge under review.  

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

___esc__  __js_____  ___cmf__  DENY APPLICATION

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

INDEX

CASE ID	AR1999032748	
SUFFIX		
RECON		
DATE BOARDED	2000/08/03	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1989/04/17	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.