MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 September 2002                 
	DOCKET NUMBER:   AR2002074743

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Kenneth W. Lapin 		Member	
	Mr. Donald P. Hupman, Jr.		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 be upgraded to honorable.

APPLICANT STATES:  That he is presently living in Denver, Colorado, and the father of four young men.  He has taught them to respect people of authority and hopes that they do not make the same decisions he made in life.  Hopefully if his discharge is upgraded or not, it would show his boys to take responsibility for their actions all the time.  He also would like to receive a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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

He enlisted in the Army Reserve for 7 years, in pay grade E-1, on 7 August 1987.

He enlisted in the Regular Army, in pay grade E-2, on 17 August 1987 and completed basic and advanced training and was assigned military occupational specialty 11B10, Infantryman.

On 12 April 1988, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for participating in a breach of peace by wrongfully wrestling with another soldier.  His punishment included 14 days extra duty and 14 days restriction.

He was advanced to specialist, pay grade E-4, on 1 December 1988.

On 17 January 1989, he was punished under Article 15, UCMJ, for violation of a lawful general regulation, by wrongfully transferring of tax-free merchandise, a car stereo.  His punishment included forfeiture of pay for 1 month and 14 days extra duty.

On 10 March 1989, he was punished under Article 15, UCMJ, for being on post as a sentinel at the guardhouse and leaving his post before he was regularly relieved.  His punishment included reduction to private first class, pay grade 
E-3, forfeiture of pay, extra duty and restriction.

On 7 June 1989, he was charged with 1 specification of abandoning guard duty, 1 specification of leaving his weapon & arms room keys unsecured (dereliction) and 1 specification of breaking restriction and referred to a summary court-martial.  On 5 July 1989, he was found guilty by summary court-martial of all the charges and sentenced to reduction to pay grade E-1, forfeiture of $466.00 and confinement at hard labor for 20 days.  The sentence was approved on 18 July 1989.

On 11 August 1989, the Office of the Staff Judge Advocate finalized the sentence.  The applicant was provided a copy of this review.

On 12 August 1989, his commander initiated action to separate him from the service for commission of a serious offense.  The commander stated that the reason for the proposed action was the applicant’s conviction by summary court-martial and his record of 3 previous Article 15’s.

On 23 August 1989, the applicant acknowledged receipt of the proposed separation action.  Through counsel he elected not to submit a statement in his own behalf.  The applicant also acknowledged the rights available to him, the effect of any action taken by him waiving his rights and what he may expect as the result of issuance of a discharge under other than honorable conditions.

On 12 September 1989, the appropriate authority approved his discharge and directed that a General Discharge Certificate be furnished.

He was separated on 26 September 1989 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 14 for misconduct – commission of a serious offense.  He was issued a General Discharge Certificate.  He was credited with 2 years, 1 month and 10 days total active service.

On 21 June 2002, the Army Discharge Review Board denied his request for an 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, convictions by civil authorities, and 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.

Paragraph 3-7 of this regulation 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board notes the applicant’s contentions that he is the father of four and he has taught them to respect people of authority and hopes that they do not make the same decisions he made in life.  However, the applicant’s charges and conviction by summary court-martial outline his misconduct.  He was properly recommended for discharge for this misconduct, and properly discharged.  

3.  While the Board has taken cognizance of how he is raising his sons and the fact that he made the wrong decisions in life, these factors do not warrant the relief requested.

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

_KWL___  _DPH___  _AAO___    DENY APPLICATION

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

INDEX

CASE ID	AR2002074743	
SUFFIX		
RECON		
DATE BOARDED	20020924	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.