MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 February 2002                   
	DOCKET NUMBER:   AR2001063715

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy 		Member	
	Mr. Roger W. Able		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 discharge be upgraded to fully honorable.

APPLICANT STATES: That he has had no misconduct in the last 3 years.

EVIDENCE OF RECORD: The applicant's military records were unable to be located.  Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

During the period 9 August 1992 through 12 March 1995, the applicant served in the Regular Army (RA) and was honorably separated in order to reenlist.

On 13 March 1995, the applicant reenlisted for 4 years in the RA.

On 6 January 1996, while serving in pay grade E-4, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice for driving drunk and operating a vehicle without a driver’s license on 21 December 1996.  His punishment included a reduction to pay grade E-1, a forfeiture of $437 pay per month for 2 months, restriction and extra duty.  There was no appeal.

On 25 March 1997, a separation physical examination cleared the applicant for separation. 

On 18 April 1997, in consonance with his plea, while serving in an undetermined pay grade, he was convicted by a summary court martial (SCM) of his failure to repair (FTR) on 25 January 1997; his AWOL during the period 26 through         28 January 1997; his AWOL during the period 2 through 6 February 1997; his FTR on 28 February 1997; and, for being drunk and disorderly on 7 April 1997.  His sentence included confinement for 15 days and a forfeiture of $450 pay.

On 1 May 1997, the unit commander notified the applicant of the initiation of a separation action under Army Regulation 635-200, paragraph 14-12c, for serious misconduct and he was advised of his rights.  The applicant acknowledged the commander’s notification and waived consulting counsel.

On 2 May 1997, a Report of Mental Status Evaluation indicates the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible; met the retention requirements of Chapter 3, AR 40-501; and that there was no evidence of a mental disease or defect of psychiatric significance or of sufficient severity to warrant disposition through medical channels.  The applicant was cleared for any administrative actions deemed appropriate by his commander.

On 5 May 1997, the appropriate separation authority approved the applicant’s discharge and directed he receive a general discharge, under honorable conditions.
On 20 May 1997, in consonance with his plea, while serving in an undetermined pay grade, he was convicted by a SCM of being absent without leave (AWOL) for the period 9 through 10 May 1997.  His sentence consisted of confinement for  30 days and a forfeiture of $600 pay.

On 13 June 1997, he was discharged, in pay grade E-1, under Army Regulation 635-200.  His separation document indicates he had 4 years, 9 months and      25 days total creditable service and 10 days of lost time.

On 19 October 2001, the Army Discharge Review Board found his discharge to be proper and equitable and denied his request for upgrade of his discharge.

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, conviction 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 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 applicant is not entitled to an upgrade of his discharge to fully honorable. His contention of no further misconduct in the last 3 years does not sufficiently support his request for an upgrade of his discharge. 

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His discharge was clearly caused by his misconduct.

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

_kak____  _rwa____  _jh_____   DENY APPLICATION

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

INDEX

CASE ID	AR2001063715	
SUFFIX		
RECON		
DATE BOARDED	20020205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.000	
2.		
3.		
4.		
5.		
6.