MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 February 1999                   
	DOCKET NUMBER:   AR1999015198

	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. James M. Alward		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Samuel Calderon		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 he receive the Special Separation Benefit (SSB) to which he was entitled.

APPLICANT STATES:  His Chapter 14 discharge was totally mishandled.  He had been counseled by his company commander that it would be in his best interest to voluntarily separate and take advantage of the SSB.  His commander not only recommended this action but he approved it.  He was told he would be allowed this SSB providing there was no further misconduct of any sort.  There was none.  He was evaluated by a medical health director who specified that he met the requirements for retention on active duty.  He was even given orders stating he would receive at least severance pay.  Then, without warning, on or about 10 June 1992, he was asked to pack his bags and was escorted to the airport and flown to Fort Dix, NJ for separation.  Until he got to Fort Dix he had no idea he was getting a misconduct discharge.  Since his discharge, he has worked for the Department of Defense and has received several awards.

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

After initially serving in the U. S. Army Reserve, the applicant enlisted in the Regular Army on 6 October 1983.  He was honorably discharged on 24 June 1987 for the purpose of immediately reenlisting on 25 June 1987.  He was promoted to Sergeant, E-5 on 1 July 1990.  His next reenlistment contract is not available, but he had furnished to the Army Discharge Review Board (ADRB) a certificate showing he was honorably discharged on 3 June 1991 presumably for the purpose of immediately reenlisting on 4 June 1991.  

The Chapter 14 separation packet is not available in the applicant’s records; however, the applicant provides a partial packet.

An undated, unsigned memorandum notified the applicant that he was being recommended for separation under the provisions of Army Regulation 635-200, Chapter 14 for misconduct - commission of a serious offense and cited drunk driving incidents on 18 November 1988 and 14 November 1991.

An undated, unsigned acknowledgement from the applicant shows that he requested board consideration of his case, personal appearance before such a board, he requested counsel, and elected to submit a statement in his own behalf.

On 30 January 1992, the applicant completed a mental status evaluation and was found to be mentally responsible and mentally capable of understanding and participating in proceedings.  It was determined he met the (medical) qualification standards for retention and was cleared psychologically for whatever administrative action was deemed to be appropriate.

On 12 February 1992, the applicant was counseled regarding a Field Grade Article 15 for driving while intoxicated.  (No Article 15 is on file.)  The applicant signed the counseling statement on 12 February 1992, but in an attached statement notes that the statement was given to him on 8 April 1992.

On 27 February 1992, the applicant requested separation under the SSB.  His company commander recommended approval.  No further endorsements nor the final approval document is available.

On 12 March 1992, the applicant was notified that he was disqualified for award of the Army Good Conduct Medal due to pending Chapter 14 discharge.  The applicant elected to provide no rebuttal statement and on 4 May 1992 the disqualification statement was forwarded for filing in his Official Military Personnel File.  

On 12 May 1992, separation orders were published assigning the applicant to the U. S. Army Transition Point, Fort Jackson, SC (or alternate, Fort Dix, NJ).  The orders state that the soldier was entitled to half separation pay and that the reporting date was to be determined upon receipt of a port call.  The orders also stated that “Escort requirements for individuals being separated under the provisions of chapters 5, 9, 10, 13, 14, 15, or 16-5 Army Regulation 635-200 remains in effect.”  The orders also stated the authority was “AR 635-200” and do not show the specific chapter.

On 9 June 1992, those separation orders were amended to show a report date of 10 June 1992.  The amended orders also stated the authority was “AR 635-200” with no specific chapter noted.

On 11 June 1992, the applicant was discharged, with a characterization of service of under honorable conditions (general), under the provisions of Army Regulation 635-200, Chapter 14 for misconduct – commission of a serious offense.  He had completed 8 years, 11 months and 28 days of creditable active service and had no lost time.  His awards and decorations included the Army Commendation Medal; the Army Achievement Medal, 3d oak leaf cluster; and the Army Good Conduct Medal, 2d award.

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.

Title 10, section 1174, U.S. Code authorizes separation pay or half separation pay for a regular enlisted member who is discharged involuntarily or as the result of the denial of the reenlistment of the member.  An enlisted member is precluded from receiving either full or half separation pay when he/she is separated for unsatisfactory performance or misconduct.

Section 1174a provides for separation pay upon voluntary separation under a special separation benefits program.  The programs are subject to the needs of the service and are determined by the Secretary concerned.  The applicability of a program under this section is generally limited to any category of personnel defined by the Secretary in order to meet a need of the armed force under the Secretary’s jurisdiction to reduce the number of members in certain grades, the number of members who have completed a certain number of years of active serve or the number of members who possess certain military skills or are serving in designated competitive categories.

On 10 December 1998, the ADRB upgraded the applicant’s characterization of discharge to fully honorable based upon an inequity – his generally acceptable personal conduct and performance of duty mitigated the discrediting entries in the service record.  The ADRB changed the narrative reason from “misconduct-commission of a serious offense” to “misconduct” based upon regulations currently in effect.  

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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The unsigned and undated documents the applicant provides are insufficient evidence that the appropriate procedures were not followed nor that his legal rights were jeopardized.

2.  The Board notes that the applicant was aware that he was pending Chapter 14 discharge when he received notice on 12 March 1992 that he was disqualified for award of the Army Good Conduct Medal, a date subsequent to his request for voluntary separation under the SSB.  

3.  The Board notes that the notification of separation action cites one incident that occurred prior to the applicant’s latest enlistment but believes the precipitating event for initiating the separation action was the 14 November 1991 incident with the prior event cited only to show a history of the same offense.

4.  The statement on the applicant’s mental status evaluation that he was qualified for retention only meant that he met the medical standards for retention.

5.  The Board is uncertain just what information the servicing personnel office had when it published his separation orders to make them think he was entitled to half separation pay; however, the applicant supplies no evidence to show that
his request for voluntary separation was approved nor that anyone in his chain of command intended that it be approved subsequent to 12 March 1992.

6.  The Board is cognizant of the applicant’s good post-service conduct, but this factor does not warrant the relief requested.

7.  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

__JMA___  __JLP___  __SC____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015198	
SUFFIX		
RECON		
DATE BOARDED	19990225	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.