MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 September 2002
	DOCKET NUMBER:   AR2002077535

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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:  In effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that he was young when he was in the service, and he received a GD.  However, he now wants to join the Army National Guard (ARNG) and would like an upgrade to his discharge.  

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

On 3 September 1999, he enlisted in the Regular Army for 3 years.  He successfully completed basic training at Fort Jackson, South Carolina and advanced individual training (AIT) at Fort Eustis, Virginia.  Upon completion of AIT he was awarded military occupational specialty (MOS) 88H 
(Cargo Specialist) and remained at Fort Eustis for his first permanent duty assignment.

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.  However, it does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and his conviction by a summary court-martial.

On 28 July 2000, the applicant accepted NJP for wrongfully using marijuana.  His punishment included a reduction to private/E-1, forfeiture of $500.00 per month for two months (one month suspended), and correctional custody for 30 days. 

On 23 February 2001, the applicant was found guilty of seven specifications of failing to go to his appointed place of duty and absenting himself from his unit without authority, and one specification of wrongfully using marijuana.  His sentence included a forfeiture of $521.00, and confinement for 30 days.  

On 17 April 2001, the applicant was notified by his unit commander that action was being initiated to separate him under the provisions of chapter 14, Army Regulation 635-200, for a pattern of misconduct.  On 19 April 2001, the applicant consulted legal counsel, and was advised of the basis for the contemplated separation action and its effect, the rights available to him , and the effect of any action taken by him in waiving his rights.  Subsequent to this counseling, the applicant completed his election of rights, and elected not to submit a statement in his own behalf.

On 19 April 2001, the applicant’s unit commander initiated separation action against the applicant.  The unit commander cited the following reasons for taking the action:  the applicant’s failure to be at his appointed place of duty on 
14 separate occasions between 8 May 2000 and 5 February 2001; two separate incidents of the applicant being absent without leave (AWOL), from on or about 
4 to on or about 5 December 2000 and from on or about 19 December 2000 to on or about 11 January 2001; his use of marijuana; and his receipt of a General Officer Letter of Reprimand (GOLOR) for driving while under the influence of marijuana.  The unit commander also recommended that the applicant receive a GD.  

On 20 April 2001, the separation authority approved the applicant’s separation and directed that he receive a GD.  On 11 May 2001, the applicant was discharged accordingly, after completing a total of 1 year, 8 months, and 9 days of active military service.

On 14 August 2002, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge after concluding that his discharge was proper and equitable.  

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.  

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 Board notes the applicant’s request that his GD discharge be upgraded to an HD because he was young at the time he served, and that he would now like to join the ARNG.  However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.

2.  The applicant has failed to provide evidence to show that his youth was a significant factor that contributed to the misconduct that resulted in his discharge. Further, while his desire to join the ARNG is admirable, it does not provide a basis for upgrading his discharge.  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  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.

4.  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

__FNE__  __BJE___  __WDB___  DENY APPLICATION

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

INDEX

CASE ID	AR2002077535	
SUFFIX		
RECON		
DATE BOARDED	2002/09/10	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	2001/05/11	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Pattern of Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.