MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 November 1998
         DOCKET NUMBER: AC92-10068A

         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. Loren G. Harrell		Director
Mr. Kenneth Aucock		Analyst

The following members, a quorum, were present:

Mr. James E. Vick		Chairperson
Mr. Luther L. Santiful		Member
Mr. Thomas N. Kuhn		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)

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APPLICANT REQUESTS: In effect, reinstatement into the Army with the restoration of all rights, privileges, and property.

APPLICANT STATES: He states that he was unjustly denied the right to present his case before a board pursuant to Army Regulation 635-200, because of an erroneous determination that he had waived his right to the board.

He states in April 1991 and again twice in February 1992 he was informed that action was being taken to eliminate him from the Army, and on all occasions he requested consideration of his case by an administrative separation board. The applicant submits a copy of a 23 April 1991, a 5 February 1992, and another
5 February 1992 (with that date crossed out and the date 20 February substituted thereon) memorandum acknowledging that he had been advised by consulting counsel of the basis for contemplated action to separate him for misconduct. In all three of these memorandums the applicant stated that he requested consideration of his case by an administrative separation board. The second memorandum, on 5 February 1992, indicates a signature of counsel dated 21 September 1992.

The applicant states that the applicant was ordered to be discharged for misconduct with an other than honorable discharge by the commander of First Army after determining that he had not requested a board, and thus had waived the board. He was administratively reduced to pay grade E-1 and discharged.

The applicant states that each time that he was informed of elimination he signed the election form requesting a board and mailed it by certified mail to his chain of command. He encloses copies of four certified return receipt forms, two showing date of delivery 25 February 1992, one that was undelivered, and one showing date of delivery of 16 July 1992. He states that he never waived his right to a board.

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

The applicant enlisted in the Army Reserve on 28 May 1978 and completed training as a medical specialist. He attained the pay grade of E-5 and reenlisted in that grade for three years in the Army Reserve on 10 June 1983. He reenlisted again for three years on 9 March 1986. He was promoted to pay grade E-6 on 7 February 1988, and reenlisted for three years again on
21 January 1989.

In a 23 April 1991 “boiler plate” memorandum concerning separation for misconduct the applicant stated that he requested consideration of his case by an administrative separation board.
The Fort Meade, Maryland Staff Judge Advocate had returned a previous separation packet initiated against the applicant to the applicant’s battalion commander, stating that it was not legally sufficient and recommended changes be made, i.e., that the applicant be charged for commission of a serious offense, and conviction by a civil court. That official also stated that once the packet was reinitiated that the chain of command must again either approve or disapprove the action. This correspondence is undated.

On 1 August 1991 the applicant requested redress under Article 138, UCMJ, and Army Regulation 27-10, because of an alleged wrong done him. He stated that the action requesting elimination action against him for bigamy, larceny, and falsification of records was taken without notifying him, and that his commanding officer did not contact the Brigade Staff Judge Advocate or refer to appropriate Army regulations. He was notified on 26 September 1991 that his request for redress because of enlisted elimination actions was inappropriate for Article138 complaints.

On 20 February 1992 the applicant, by certified mail, demanded that a “flagging” action against him be removed, that the financial situation in which he had been placed be immediately corrected, and he also suggested that he be given a written apology.

On 20 February 1992 the applicant requested his company commander either approve or disapprove a DA Form 4187, request for reenlistment. He stated that this was the second request he had forwarded. This request was forwarded by certified mail (with the same article number as indicated on one of the certified mail forms he enclosed with his application). The applicant forwarded a similar request concerning his reenlistment, on the same date. That request shows
a certified mail article number, as indicated in another of the certified mail forms he enclosed with his application. Both of these requests came about in order to obtain his commander’s approval on his requests, one on 13 January 1992 and one on 18 February 1992, to be continued in the Active Guard/Reserve
(AGR) program for an additional three years and to be allowed to reenlist.

On 30 March 1992 the applicant again complained of wrong done him and requested redress under Article 138, UCMJ. He alleged that he was erroneously declared AWOL, that his previous request for redress on 1 August 1991 was not answered within the 15 day period required by regulation, that that complaint of wrong was never forwarded, that an annual NCOER was not processed as required, but that a new, illegal NCOER was instead initiated, that his career was being destroyed because he was not allowed to reenlist, and that adverse actions were initiated against him without counseling him. He stated that he was highly praised by a general officer for his performance during Operation Desert Storm, that he had never received nonjudicial punishment during his 14 years of faithful military service, that he had received numerous letters of commendation, 4 Army Achievement Medals, and 1 Army Commendation Medal. He stated that his company commander and battalion commander openly displayed racial and bias feelings toward full time minority enlisted soldiers.

The applicant’s battalion commander stated that he had reviewed the complaint and that it was not his intention to grant any redress. He stated that the applicant had been recommended for separation under the provisions of Army Regulation 635-200, and that Article 138 was inappropriate for separation actions. He forwarded the complaint on 7 May 1992. That complaint was forwarded on to the legal section at Fort Meade, Maryland on 2 June 1992. There is no record of any action being taken on this complaint.

On 4 February 1992 the applicant’s company commander notified the applicant that he was initiating separation action against the applicant for misconduct under the provisions of Army Regulation 635-200. He stated that this action superseded previous recommendations. His commander stated that the applicant was convicted in North Carolina for assault with a deadly weapon with intent to commit serious injury, AWOL from 17 May to 29 July 1991, and submitting a false official statement, in which he claimed to be married to a female and had produced a fraudulent certificate of marriage used to apply for government quarters. He stated that he was recommending that the applicant receive a discharge under other than honorable conditions. He was informed that he had the right to consult with counsel, obtain copies of documents supporting the proposed separation, and request a hearing before an administrative board, among other rights. His commander stated that he could waive his rights, but could withdraw any waivers any time prior to the date the separation authority approves his separation. He was directed to execute acknowledgement of receipt of this action and return it within 7 days from the date of its receipt, and to include a “boiler plate” memorandum indicating his options.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged for misconduct under the provisions of Army Regulation 635-200. He stated that the applicant had been convicted in North Carolina for assault with a deadly weapon with intent to commit serious injury, that the applicant had pled guilty and was sentenced to 5 years imprisonment, suspended, and placed on 5 years probation after serving 30 days in civil confinement. He stated that the applicant was AWOL from 17 May to
29 July 1991, and that the applicant had claimed to be married and had produced a fraudulent certificate of marriage when applying for government quarters. He indicated that the applicant was in civil confinement from 14 March to 29 March 1990, from 22 August to 21 September 1990, and from 19 March to 31 March 1991.

The applicant’s company commander submitted with his recommendation a copy of a felony judgment from the state of North Carolina, a copy of a documents showing that the applicant had turned himself in from an AWOL/Dropped from the Rolls status, a copy of a document showing he was involved in a vehicle accident in June 1971; and a copy of a CID report of investigation into his marital status, which disclosed that the applicant, while still legally married to one woman had entered into a common law marriage with another woman, had obtained a document, titled certificate of marriage to this second female, and had presented this misleading document to officials in obtaining government quarters.

He enclosed documents showing that the applicant had been under civil confinement on three occasions and documents terminating his government quarters, among other papers.

In a 19 August 1992 memorandum the applicant’s battalion commander stated that the applicant was given a copy of a “waiver statement” and verbally instructed to complete and return the document. This was done during the last week of June 1992. The battalion commander stated because there was no response a 5 August 1992 memorandum to the applicant was prepared, informing the applicant that First Army had determined that his original waiver statement dated 23 April 1991 was not acceptable because of its age, and requested that he (the battalion commander) direct the applicant to complete a current waiver statement.

In his 19 August 1992 memorandum the battalion commander stated that the only waiver statement on file was the one the applicant had signed on
23 April 1991, in which he did not waive his rights and did request the right to a personal appearance before a board. In a separate 19 August memorandum the battalion commander stated that he personally delivered the 5 August memorandum to the applicant on 10 August 1992, and as of 19 August the applicant had failed to return an executed “waiver statement”.

On 13 September 1992 a JAGC officer at Fort Meade stated that the separation action against the applicant was legally sufficient and the applicant could be separated without recourse to an administrative separation board. The separation packet revealed that the applicant had been under consideration for separation on several occasions, and that on 23 April 1991 he did indicate his desire to have his case heard before a separation board; however, the separation action initiated in April 1991 was never completed. He stated that the new separation action initiated in February 1992, included the notice to the applicant that “this action supersedes previous recommendations.” He stated that the applicant’s company commander had given unambiguous notice that a new action had begun, that the wording in the notification form [to the applicant] was in boiler plate provided by regulation, and warned the applicant that his failure to return the acknowledgement within 7 days of receipt would constitute a waiver of his rights, to include a hearing before an administrative separation board. The JAGC officer stated that the applicant’s battalion commander attempted on two occasions to have the applicant complete the acknowledgement; however, the applicant did not respond. He stated that despite these efforts to awaken the applicant to the gravity of his situation, he would not provide the document necessary to preserve his procedural rights; by so doing, he waived those rights, and could now be separated without recourse to a hearing before an administrative separation board.

On 22 September 1992 the separation authority approved the recommendation and directed that the applicant be separated with an other than honorable discharge certificate. That official stated that the applicant waived his right to an administrative separation board by willfully refusing to respond to, or acknowledge receipt of, a properly issued notification regarding the separation action.

The applicant was discharged on 2 October 1992. He had over 4 years of active service and over 10 years of inactive service.

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. A discharge under other than honorable conditions is normally appropriate for a solider discharged for misconduct.

Paragraph 14-8 states that when discharge is contemplated for misconduct because of conviction by a civil court, the unit commander will take action as specified in the administrative board procedure (chapter 2, section II), and that when discharge is contemplated for acts or patterns of misconduct the administrative board procedures (chapter 2, section III) will be used.

Both section II and section III of chapter 2 state in pertinent part, that the solider will be advised that his separation has been recommended and that he has certain rights, to include the right to consult with consulting counsel within a reasonable time (not less than 3 duty days), and to a hearing before an administrative separation board. Failure to respond to the notification within
7 days will constitute a waiver of those rights.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The applicant did request a hearing before an administrative separation board in April 1991 apparently as a result of separation action initiated against him in that year; however, subsequent to that date, in February 1992, the applicant’s commanding officer reinitiated separation action against the applicant for misconduct, clearly informing him that this action superseded previous recommendations for separation. The Fort Meade JAGC officer, in his legal opinion concerning the separation action, alluded to the fact that the applicant had been under consideration for separation on several occasions prior to the initiation of separation action in February 1992.

2. At least two of the pieces of certified mail which the applicant states contained his signed election form requesting a board of officers, in fact, contained correspondence initiated by him requesting to be continued in the AGR program and requesting that he be allowed to reenlist. Consequently, the applicant’s contention that he mailed election forms requesting a board` is suspect, despite the presence of forms that he included with his application. That election form is simply not enclosed with the separation action.

3. Furthermore, the applicant’s battalion commander has stated that he became involved in providing the applicant an opportunity to complete the election form, verbally informing the applicant during the last week in June to complete and return the document, and personally delivering a memorandum to the applicant on 10 August, again directing that he complete and return the form.

4. The Fort Meade JAGC officer has stated that the applicant’s failure to complete and return his election form constituted a waiver of his right to an administrative separation board. Thus, he could be separated without a hearing before an administrative separation board. This Board agrees.

5. The applicant has been offered all due consideration in the action which resulted in his separation for misconduct on 2 October 1992. The applicant's allegation regarding violation of rights is unsupported by the evidence of record.
The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is appropriate considering the nature of the misconduct.

6. 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

JEV____ __LLS___ __TNK___ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director