MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            8 April 1999                  
	DOCKET NUMBER:   AR1999015170

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Barbara J. Ellis		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 his records show that he was entitled to separation pay.

APPLICANT STATES:  His rights were violated.  He had over 18 years of active service and was involuntarily separated and not allowed to retire or receive separation pay.

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

He initially served in the U. S. Army Reserve.  He enlisted in the Regular Army on 26 January 1976.  He had continuous service until his discharge.

In March 1993, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for operating a passenger car while drunk.  His imposed punishment was to be reduced to pay grade E-5 and to forfeit $750 pay for two months.

On 9 March 1993, separation action under the provisions of Army Regulation 635-200, Chapter 14, commission of a serious offense, was initiated.  The commander cited the applicant’s apprehension for driving under the influence (DUI) while on 5-years probation for a similar offense committed in September 1990.  The commander recommended he receive a general discharge.

The applicant was advised by counsel and acknowledged notification of the separation action.  He requested his case be considered by a board of officers, he wanted to make a personal appearance before such a board, and requested representation by counsel before such a board.  He did not submit statements in his own behalf.

On 27 May 1993, the board convened.  The applicant and witnesses for the applicant appeared before the board.  The witnesses, to include his First Sergeant and Battalion Command Sergeant Major, all stated that despite the applicant’s two incidents of DUI he was a good soldier who should be retained.  The applicant testified that he never told his command of his first arrest for DUI because he wanted to deploy to Saudi Arabia.  In 1989 he had been referred to Track II (of the Alcohol and Drug Abuse Prevention and Control Program) because his wife and he were having problems and he became depressed and began drinking.  He was impaired but not drunk.  He was totally responsible for his actions.  The board found that the applicant’s rehabilitation was not deemed possible and recommended that he be separated due to misconduct. 

The commanding general recommended the board’s findings be approved and the applicant be given a general discharge.  The separation packet was forwarded to Headquarters, Department of the Army (HQDA) for final action.  
On 29 September 1993, HQDA carefully reviewed the recommendation, approved the applicant’s discharge for commission of a serious offense, directed he be issued a General Discharge Certificate, and stated he would not be authorized separation pay.

On 5 November 1993, the applicant was discharged.  His DD Form 214 erroneously indicates that he was discharged under the provisions of Army Regulation 635-200, Chapter, 9, Alcohol Rehabilitation Failure, with an honorable discharge.  He had completed 18 years, 4 months and 2 days of creditable active service.  His awards and decorations included the Army Commendation Medal, the Army Achievement Medal (1st oak leaf cluster) and the Southwest Asia Service Medal.

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.

Army Regulation 635-200 also states that a soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged without approval of HQDA.

The Department of Defense Financial Management Regulation, Volume 7A, Chapter 35, states that an individual is entitled to full separation pay when he/she is involuntarily separated from active duty and, among other conditions, has completed at least 6 years but less than 20 years active service; has a separation characterized as “honorable” and none of the conditions in paragraph 350202 apply; is fully qualified for retention but is denied reenlistment; and has entered into a written agreement to serve in the Ready Reserve for a minimum of 3 years.  An individual is entitled to half separation pay when he/she is involuntarily separated from active duty and, among other conditions, has completed at least 6 years but less than 20 years active service; has a separation characterized as “honorable” or “general” and none of the conditions in paragraph 350202 apply; is fully qualified for retention but is denied reenlistment due to alcohol abuse rehabilitation failure; and has entered into a written agreement to serve in the Ready Reserve for a minimum of 3 years.

Paragraph 350202 states a service member is not eligible for separation pay if the member is an enlisted member who is separated for misconduct.

Army Regulation 600-8-2 prescribes policies governing the suspension of favorable personnel actions.  In pertinent part, it states that a flag will be submitted when an unfavorable action or investigation (formal or informal) is started against a soldier by military or civilian authorities.  The flag will be removed when charges are dropped or punishment is completed.

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 the aforementioned requirement.

2.  There is an error in the applicant’s records; however, it is in the applicant’s favor.  His DD Form 214 is incorrect in stating that he was given an honorable discharge for alcohol rehabilitation failure.  He was separated with a general discharge for misconduct, commission of a serious offense.

3.  The applicant’s separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The offense of DUI was not his first.  He was still on probation for a similar offense 3 years earlier, of which offense and subsequent punishment (5-years probation) he had failed to inform his command.  (The
Board notes that the applicant’s records should have been flagged for the entire 5 years his punishment, probation, was in effect).

4.  As a soldier with over 18 years active Federal service, his separation was properly approved by HQDA.  As an enlisted member who was separated for misconduct, HQDA properly denied him separation pay.

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___  __JLP___  __BJE___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015170	
SUFFIX		
RECON		
DATE BOARDED	19990408	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19931105	
DISCHARGE AUTHORITY	AR 635-200, Ch 14	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.