APPLICANT REQUESTS: In effect, that his general discharge (GD) be voided and that he be reinstated to active duty with all back pay and any other relief deemed appropriate.
APPLICANT STATES: In effect, that he was separated under the provisions of chapter 14-12c, Army Regulation (AR) 635-200, for commission of a serious offense. However, he was notified by his commander that he was being separated in the provisions of chapter 14-12b for a pattern of misconduct. He contends that he did not commit a serious offense and the narrative reason for separation on his Certificate of Release or Discharge from Active Duty, DD Form 214, is incorrect.
COUNSEL CONTENDS: In effect, that by changing the reason for separation from a pattern of misconduct to commission of a serious offense, the chain of command denied the applicant due process by denying him the opportunity for rehabilitation.
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 20 April 1956 and enlisted in the Regular Army for 5 years on 28 November 1989. Following completion of the required military training, he was assigned to a unit at the Presidio of San Francisco, California, with duty as a veterinary food inspection specialist.
The applicant had a history of disciplinary problems. In December 1991, he was caught making unauthorized long distance telephone calls on government telephones. The telephone calls cost the Government $73.93 and the applicant admitted his guilt and was counseled. In February 1992, he was removed from Government quarters due to acts of misconduct. In April 1991, military authorities were called to his quarters at Oakland Army Base because of a domestic disturbance. He was informed that future disturbances would not be tolerated yet, on 18 January 1992, military authorities responded to a second domestic disturbance at the applicants quarters. In August 1992, he received nonjudicial punishment for damaging Government property by disobeying instructions on where to park a military vehicle causing it to be struck by another vehicle. In January 1993, he was cited for misappropriation of a Government vehicle when he used said vehicle to obtain sexual favors (fellatio) from a woman on a public street in a civilian sector of Oakland, California. In February 1993, he was caught driving on a suspended drivers license.
Because of his history of misconduct, the applicant was referred by his commander for a mental health evaluation. The evaluation found him to be normal and motivated toward resolving his problems through counseling. The enlisted behavioral Science specialist who interviewed the applicant opined that rehabilitative efforts were warranted.
On 26 April 1993, the applicant was apprehended by military authorities on the Alameda Naval Air Station (California) for commission of a serious offense, larceny of Government property. He was processed by law enforcement personnel and released to the custody of his immediate supervisor. The applicant was counseled by his first sergeant on 3 May 1993 for commission of a serious offense and demonstrating a pattern of misconduct. He was advised that he could be separated from the Army and that he could receive an other than honorable discharge.
On 27 May 1993, the applicants commander notified him that he was initiating action to separate him under the provisions of AR 635-200, chapter 14-12c, COMMISSION OF A SERIOUS OFFENSE. He acknowledged notification and consulted with legal counsel. On 7 June 1993, the appropriate authority waived rehabilitative efforts and approved the applicants separation with a GD for misconduct--commission of a serious offense.
The applicant was separated with a GD on 18 June 1993. He had 3 years, 6 months, and 21 days of creditable service and no lost time. His DD Form 214 reflects the narrative reason for separation as misconduct--commission of a serious offense; the separation authority is listed as AR 635-200, chapter 14, paragraph 14-12c.
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 applicant was not a good soldier. Throughout his period of service, he was in trouble for various violations of law and regulations.
2. Following his apprehension for larceny of Government property on the Alameda Naval Air Station, the applicant was counseled by his first sergeant for a pattern of misconduct stretching back more than 1 year.
3. The applicants commander initiated action to separate him based on the commission of a serious offense (larceny). This action was completely appropriate and was accomplished in accordance with applicable regulations.
4. The mental health evaluation by behavioral services which highlighted the applicants amenability to rehabilitation was completed on 2 April 1993. Some 24 days later, the applicant was caught stealing Government property, an act which effectively removed rehabilitation as an option in his case in the minds of his commanders.
5. The applicants DD Form 214 appropriately reflects the administrative reason for his separation.
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
DENY APPLICATION
Karl F. Schneider
Acting Director
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