MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 October 2002
	DOCKET NUMBER:   AR2002079658

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		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:  In effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

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

On 18 September 1997, the applicant entered the Army for a period of 3 years.  He successfully completed training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  

The applicant’s record shows that the highest rank he attained while serving on active duty was private first class/E-3 (PFC/E-3).  It also shows that during his active duty tenure, he earned the following awards:  Army Service Ribbon; Expert Marksmanship Qualification Badge with Grenade Bar; and Marksman Marksmanship Qualification Badge with Rifle Bar. 

His disciplinary record includes his acceptance of NJP, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 15 December 1998 for adultery.  

On 28 August 1998, the applicant was notified by his unit commander that separation action was being initiated to eliminate him from the Army under the provisions of chapter 14-12c, Army Regulation 635-200, for commission of a serious offense.  The commander stated that the basis for the contemplated separation action was the applicant being arrested on 18 April 1998 for driving under the influence of alcohol and for purchasing alcohol for a minor; for having sexual intercourse with a married women, not his wife, on or about 30 November 1998; and for wrongfully using a controlled substance, cocaine, between the dates of 29 March and 29 April 1999.  

The applicant acknowledged receipt of the separation action notification, consulted counsel, and completing his election of rights by waiving consideration of his case by an administrative separation board contingent upon his receiving a GD by reason of misconduct. 

On 11 August 1999, the separation action was approved by the appropriate separation authority, who directed that the applicant receive a GD in accordance with the terms of the applicant’s conditional wavier agreement.  On 8 September 1999, the applicant was discharged accordingly after completing a total of 1 year, 11 months, and 21 days of active military service

On 25 September 2002, the Army Discharge Review Board determined the applicant’s discharge was proper and equitable and denied his request for a change to the narrative reason for his separation and an upgrade of the character of his discharge.

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.  An honorable or general discharge may be awarded; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions

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 for an upgrade of his discharge.  However, it finds no evidence to support this request. The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and under the terms of his own conditional waiver request.  

2.  The record further shows that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and 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.  Therefore, the Board concludes that applicant’s discharge is appropriate and accurately reflects the overall quality of his service.  

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

__RVO__  __BJE__  __KAH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002079658	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/24	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19990908	
DISCHARGE AUTHORITY	AR635-200 Chapter 14.  .  .  .  .  	
DISCHARGE REASON	COSO	
BOARD DECISION	DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.	110.0200	
3.		
4.		
5.		
6.