APPLICANT REQUESTS:  That his general discharge be upgraded to honorable, that he be given the rank of E-4 and reinstated in the active Army or the Reserves with back pay, if granted.

APPLICANT STATES:  In effect, that he did not receive legal representation because it was denied.  His discharge was due to threats made by a civilian female.  He was harassed consistently by his immediate chain of command.

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

He was born on 27 December 1969.  He completed 12 years of formal education.  He enlisted in the Regular Army on 24 February 1994 for 4 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 31R (Multichannel Transmission System Operator).

On 25 January 1995, the applicant received a second notice of a dishonored check.

On 15 May 1996, DA Form 4187 was prepared, advancing the applicant to pay grade E-4 to be effective 1 June 1996.

On 31 May 1996, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty and for being disrespectful towards a non-commissioned officer.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $228 pay for 1 month and 14 days extra duty and restriction.

The applicant received four counseling statements in reference to problems with his girl friend.  The problems included altercations resulting in injuries to him, incarceration for domestic violence, court appearance for domestic violence/restraining order, and being restricted to post and his girl friend being barred from the battalion area because of these problems.  The applicant concurred in all four of these counselings.  He was also counseled for improper use of the chain of command and for not using proper sick call procedures/failure to report for physical training formation/failure to follow instructions, but he noncurred in these two counselings.

On 31 August 1996, the applicant was advanced to pay grade E-3.

On 5 November 1996, the applicant completed a separation physical and was found qualified for separation.

On 3 December 1996, the applicant completed a mental status evaluation and was found to be mentally responsible, mentally capable of understanding and participating in board proceedings and psychiatrically cleared for any administration action.

On 8 January 1997, the commander initiated separation action under the provisions of Army Regulation 635-200, Chapter 14 for pattern of misconduct. 

The applicant acknowledged the separation action.  There is no memo to show he either waived or requested consulting counsel.

On 21 January 1997, the appropriate authority approved the recommendation for separation and directed the applicant receive a general discharge.

On 7 February 1997, the applicant was discharged, in pay grade of E-3, under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.  He had completed 2 years, 11 months, and 14 days of creditable active service and had 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.  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 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  It provides for career progression and rank that is in line with potential, recognizing the best qualified soldier that will attract and retain the highest caliber soldier for a career in the Army. Additionally, it precludes promoting the soldier who is not productive or not best qualified, thus providing an equitable system for all soldiers.  In pertinent part, it states that unit commanders will take action to advance soldiers other than private E-1s on an individual basis.  It also states that soldiers are in a nonpromotable status when they are involved in proceedings that may result in an administrative elimination.

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.

2.  In the absence of credible evidence to the contrary, it is presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations.  The applicant has supplied no supporting documentation to show he was denied the right to counsel.

3.  The applicant acknowledged receipt of the separation action.  His acknowledgment is on the second page of the commander’s recommendation.

4.  The applicant’s characterization of service is commensurate with his overall record of service, which in turn would tend to justify the commander’s right to not promote to pay grade E-4.

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

                       DENY APPLICATION

						Loren G. Harrell
						Director