MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 September 2002
	DOCKET NUMBER:   AR2002077986

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Ms. Karen A. Heinz		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 under honorable conditions be upgraded to fully honorable.

APPLICANT STATES:  That he was told his discharge would be upgraded six months after his discharge.  He paid all the installments on his Montgomery GI Bill (MGIB) and now he cannot receive it.  He is trying to attend school so he can reenter the military.  One brother died (apparently in an accident during peacetime) for and another brother is still serving his country.  Supporting evidence is as listed on the DD Form 149.

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

He entered the Delayed Entry Program on 30 June 1995.  He indicated he desired to participate in the MGIB and signed a DD Form 2366, Montgomery GI Bill Act of 1984 (MGIB).  He acknowledged that he understood his basic pay would be reduced $100 per month for each of his first 12 months of active duty and that basic pay reduction could not be refunded, suspended, or stopped.  He also acknowledged that he must receive an honorable discharge for service establishing entitlement to the MGIB.  He enlisted in the Regular Army on         22 November 1995 for 3 years.  

On 19 December 1997, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to obey a lawful general regulation by wrongfully consuming alcohol while under the legal age of 21, for willfully and wrongfully damaging by smashing the windshield and flattening the front two tires of a privately-owned vehicle, by wrongfully using marijuana between 20 October and 20 November 1997, for assault by pushing and chasing
a noncommissioned officer with a bat, and for being drunk and disorderly.

The applicant's discharge packet is not available.  

On 18 December 1997, the applicant completed a separation physical and was found qualified for separation.  He also underwent a mental status evaluation on this date.  He was found to meet the retention requirements of Army Regulation 40-501, chapter 3.

On 31 December 1997, the applicant was discharged with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct.  He had completed 2 years, 1 month, and       9 days of creditable active service with no lost time.

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.  Paragraph 14-12c is for commission of a serious offense.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  

Army Regulation 635-200 states, in pertinent part, that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  As a general matter, characterization will be based upon a pattern of behavior rather than an isolated incident.  There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the bases for characterization.

On 21 August 2002, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

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 this 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.

2.  The applicant was aware at the time he enlisted that an honorable discharge was required in order to draw MGIB benefits.  It is not credible to believe that he was unaware that his misconduct (which is documented in his records and which presumably led to his early discharge) would lead to a characterization of service of something other than fully honorable.  The applicant can be proud of his brothers but their service does not excuse his misconduct.  Despite his receiving only one Article 15, the seriousness of the offenses which he committed could have led to a discharge under other than honorable conditions.  It appears his command considered his overall record in directing he receive a general discharge under honorable conditions.  A fully honorable characterization of service would not be appropriate.

3.  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

__EJA__  __TBR___  ___KAH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077986	
SUFFIX		
RECON		
DATE BOARDED	2002/09/17	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1997/12/11	
DISCHARGE AUTHORITY	AR 635-200, ch 14 	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.