MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 July 2000
	DOCKET NUMBER:   AR1999034037

	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	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Ms. Margaret V. Thompson		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 general discharge (GD), under honorable conditions, be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In essence, he feels that he should not have been discharged from the Hawaii Army National Guard (HIARNG).  He further states that he had never been in trouble during his 10 1/2 years of military service while on active duty or in the Army National Guard.  Therefore, his career in the service should not be lost due to this unfortunate incident.  He submits a letter of character reference, a State of Hawaii Department of Labor and Industrial Relations decisional document and a copy of his DA Form 20 (Personnel Qualification Record). 

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

He enlisted in the Regular Army on 10 August 1988, for 4 years.  He completed his basic combat training and advanced individual training at Fort Leonard Wood, Missouri.  Upon completion of all required military training, he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).

On 25 June 1991, he reenlisted for 4 years of active duty.  In August 1991, he was transferred to Scholfield, Barracks, Hawaii, for duty in his MOS.

On 26 May 1994, he was honorably separated and transferred to the United States Army Reserve for completion of his service obligation.  He had 5 years, 9 months and 17 days of creditable active service and no lost time.  The highest rank he attained was pay grade E-5.

The applicants DD Form 214, (Certificate of Release or Discharge from Active Duty) shows award of the Good Conduct Medal, the National Defense Service Medal, the Army Commendation Medal, the Army Achievement Medal (two awards), the Humanitarian Service Medal, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon and the Overseas Service Ribbon.

On 2 February 1969, he enlisted in the HIARNG for 4 years in MOS 63B. 

Many of the facts and circumstances leading to the applicant’s discharge are not contained in his military records.  However, the applicant’s NGB Form 22 (Report of Separation and Record of Service) shows that on 12 April 1999, he was discharged under the provisions of chapter 8, NGR 600-200 by reason of act or patterns of misconduct with a of GD.  He had completed 3 years, 2 months and 11 days of service during this period of enlistment.  He had a total of 10 years, 8 months and 
3 days of active and Reserve component service.

The applicant provides a decisional document, dated on or about 12 July 1999, from the State of Hawaii, Department of Labor and Industrial Relations, in connection with his appeal for unemployment benefits.  He was granted unemployment benefits because the labor relations appeals officer concluded that he was not discharged from the HIARNG due to “misconduct connected with work.”  

However, this document shows that the applicant was discharged from the HIARNG on 12 April 1999, following sexual harassment complaints from two female military co-workers.  The co-workers alleged that they were fondled by the applicant, who had been drinking in his hotel room at the end of the training day.

This document  also shows that the applicant was provided with legal counsel during the discharge process and he waived his rights to a hearing by a board of officers.  This was a conditional waiver and he was subsequently discharged with a GD. 

The applicant made application to the Army Discharge Review Board (ADRB) seeking a change in the characterization of the discharge.  On 15 September 1999, the ADRB denied his request finding the discharge process to be proper and equitable.

National Guard Regulation 600-200, chapter 8 and Army Regulation 
135-178 (Separation of Enlisted Personnel), chapter 7 provide for the separation of enlisted personnel of the Army Reserve and the Army National Guard for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, unsatisfactory participation, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under these regulations.  However, the separation authority may direct a GD or an HD if such is merited by the soldier’s overall record.

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.  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.

2.  The applicant’s records are generally devoid of the separation paperwork.  However, the Board presumes regularity of Government operations in the discharge process.

3.  Other evidence of record shows that the applicant was most likely discharged for after duty misconduct in connection with complaints of sexual advances on female employees.  Whether these actions were on or off duty is not germane to the discharge process.  As a noncommissioned officer, with more than 10 years service, misconduct of this nature is serious and cannot be condoned.

4.  The Board concludes that his overall record of service was considered in the discharge process.  Therefore, it finds the discharge proper and the characterization of service appropriate.

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

__gdp___   __eb ___   __mvt___  DENY APPLICATION

Carl W. S. Chun
Director, Army Boards for Correction
of military Records

INDEX

CASE ID	AR1999034037	
SUFFIX		
RECON		
DATE BOARDED	20000718 	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19940526	
DISCHARGE AUTHORITY	NGR600-200/CHAP 8	
DISCHARGE REASON	A67.50	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.43	
3.	A92.35	
4.	A92.17	
5.		
6.