MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 October 2002                  
	DOCKET NUMBER:   AR2002077007

	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:

	Ms. Irene N. Wheelwright 		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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 honorable.

APPLICANT STATES:  That he was discharged with a general discharge due to misconduct.  The misconduct was during his first term (1984-1987) and was due to being absent without leave (AWOL) during his 1st 3-year term.  That misconduct should not have been the basis for his discharge, because he was allowed to reenlist.  He feels that he should have received an honorable discharge because he was permitted to reenlist and he was discharged for misconduct based solely on his 1st term.

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

He enlisted in the Delayed Entry Program with a moral waiver for 4 years as a private, pay grade E-1 on 4 April 1984.  He entered on active duty on 16 May 1984.

He was advanced to pay grade E-2 on 16 October 1984.

On 1 April 1985, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit from on or about 4 March to on or about 27 March 1985.  His punishments included reduction to pay grade E-1, forfeiture of pay for 1 month and correctional custody for 7 days (10 April to 17 April 1985).

He attained the rank of specialist, pay grade E-4 on 16 July 1986.

On 15 January 1987, he requested a waiver for lost time for reenlistment.  On 29 January 1987, his waiver was approved for a 3-year reenlistment.

He reenlisted for 3 years on 9 February 1987.

On 22 August 1988, the applicant's commander initiated action to separate him for commission of a serious offense.  He stated that the reasons were: violation of Article 15, UCMJ, AWOL, from 4 March to 27 March 1985; disorderly conduct and failure to identify himself by producing his identification card or dog tags, 20 June 1987; and domestic disturbances on 29 December 1987 and 16 June 1988.

On 24 August 1988, the applicant acknowledged through counsel receipt of the proposed separation.  He waived his rights to a personal appearance before a board of officers and acknowledged he understood the effects of this type of discharge.  He elected to submit a statement in his own behalf in which he stated 

that he agreed with his commander to eliminate him from the service and that he understood that he had made mistakes.  He also states that he did not 
understand how he could be further punished as a human being for the rest of his life by not being discharged with an honorable discharge.  He further requested that his request to grant him an honorable discharge be deeply considered.

On 24 August 1988, a mental evaluation cleared the applicant for any administrative action deemed appropriate by his command.

On 1 September 1988, the appropriate authority approved his discharge and directed the issuance of a General Discharge Certificate (GDC).

He was discharged on 12 September 1988, under the provisions of Army Regulation 635-200, Chapter 14, Misconduct-Commission of a Serious Offense and issued a GDC.  He was credited with 4 years, 3 months and 27 days of total net active service.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.

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 discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The Board has noted his contentions; however, the applicant’s separation for misconduct was not based solely upon his AWOL during his 1st term of service.  He was discharged for his offenses of misconduct during his 2nd term of service.  By his own admission he agreed with the action by his commander to eliminate him from the service with the exception of not receiving an honorable discharge.  However, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Although the applicant may have had faithful intentions at the time of his 1987 reenlistment; these intentions were short lived, as evidenced by his record of offenses for disorderly conduct, failure to identify himself by producing his identification card or dog tags and domestic disturbances.

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

_WTM___  _INW___  _CG____   DENY APPLICATION

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

INDEX

CASE ID	AR2002077007	
SUFFIX		
RECON		
DATE BOARDED	20021003	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.