MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 December 2002
	DOCKET NUMBER:   AR2002076204

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Conrad V. Meyer		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 was given a general discharge for a Federal Aviation Administration (FAA) violation while acting as a civilian pilot in a civilian aircraft.  He goes on to state that he continued to serve as a military pilot until his expiration of term of service (ETS) and that he has flown jet aircraft for the past 22 years, with over 10,000 hours as both a corporate and commercial pilot.  He further states that his discharge has never affected his career as a pilot; however, he is now being considered for a position as an operations inspector with the FAA and an honorable discharge would place him at the top of the selection list.  He also states that he believes a general discharge was too severe for one FAA violation and submits five third party letters and a copy of his resume, in support of his application.

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

He enlisted in the Regular Army on 18 March 1977 for a period of 3 years and warrant officer flight training.  He successfully completed his training and was honorably discharged on 24 May 1978, to accept an appointment as a warrant officer.

He was appointed as a Reserve Warrant Officer One (WO1) on 25 May 1978, with a concurrent call to active duty and was transferred to Fort Hood, Texas, for duty as a rotary wing aviator.  He was promoted to the rank of chief warrant officer two (CW2) on 25 May 1980.

On 22 September 1980, the applicant’s battalion commander suspended him from flight duty and directed that a flying evaluation board be conducted.  He cited as the basis for his actions, that as a result of an FAA investigation, the applicant was found in violation of several FAA regulations that resulted in the revocation of his private pilot’s license.

On 7 October 1980, the applicant’s battalion commander notified the applicant that he was going to recommend that he be eliminated from the service under the provisions of Army Regulation 635-100, paragraphs 5-12a and 5-29e, for unacceptable conduct (moral or professional dereliction).  He cited as the basis for his recommendation the applicant’s repeated disregard for FAA Regulations, Army Regulations and the Uniform Code of Military Justice.

On 19 October 1980, nonjudicial punishment was imposed against him by the commanding general (CG) for three incidents of falsifying official records (logbooks), over a 3-month period, by certifying that he was a certified flight instrument instructor, which he knew to be false.  His punishment consisted of a general officer punitive letter of reprimand that was directed to be filed in his Official Military Personnel File (OMPF).  The applicant did not appeal the punishment.

On 23 January 1981, after consulting with counsel, the applicant submitted a request for resignation in lieu of elimination proceedings, under the provisions of Army Regulation 635-120, chapter 4.  He also acknowledged that he understood that he could receive either an honorable, general or discharge under other than honorable conditions; however, he requested that his service be considered and that he be recommended for either an honorable or general discharge. 

His chain of command recommended approval of his request with the issuance of a General Discharge Certificate.  His request was approved by a Department of the Army Special Review Board on 3 March 1981, with a General Discharge Certificate to be issued to the applicant.

Accordingly, he was discharged under honorable conditions on 18 March 1981, under the provisions of Army Regulation 635-120, chapter 4, for unacceptable conduct (moral or professional dereliction).  He had served 2 years, 9 months and 24 days of active service as a warrant officer and 1 year, 2 months and 7 days of active service in an enlisted status.

There is no indication that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

The third party letters provided by the applicant are all dated in 1988 and seek to applaud the applicant’s skills as a pilot.

Army Regulation 635-120, served as the authority for resignation in lieu of elimination under Army Regulation 635-100.  The regulation in effect at the time provided that an officer who had been selected for elimination from the service by a general court-martial convening authority or who had been selected by a Department of the Army Selection Board for elimination or to show cause why he should not be eliminated pursuant to Army Regulation 635-105, may tender a resignation in lieu of elimination.  A characterization of honorable, under honorable conditions or under other than honorable conditions was authorized.

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’s resignation and discharge were accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  The applicant’s contention that he was discharged as a result of one FAA violation has been noted by the Board and appears to be without merit.  The evidence of record indicates that there were multiple violations involved.  While they were all of the same nature, the evidence of record indicates that they occurred over a 3-month period. 

3.  While the applicant may not believe his offenses were serious, he knowingly violated the trust placed in him as a warrant officer and aviator.  Accordingly, his chain of command viewed his service as less than fully honorable.  After reviewing the evidence in this case, the Board also believes that his service was properly characterized as under honorable conditions.

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

__tmc___  ___cvm__  __cla____  DENY APPLICATION

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

INDEX

CASE ID	AR2002076204	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1981/03/18	
DISCHARGE AUTHORITY	AR635-120	
DISCHARGE REASON	RESIGNATION/UNACCEPTABLE CDT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  732	144.8000/A80.00	
2.		
3.		
4.		
5.		
6.