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ARMY | BCMR | CY1996 | 199608210C070209
Original file (199608210C070209.txt) Auto-classification: Denied

            IN THE CASE OF:

	BOARD DATE:           30 December 1998                   
	DOCKET NUMBER:   AC96-08210

	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.

	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 
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his general discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he was discharged 3 days before his expiration of term of service (ETS); that he was denied a separation physical examination; and that his general discharge precludes his use of education benefits.

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

He enlisted on 4 February 1992 for period of 3 years with an ETS of 3 February 1995.  He successfully completed his initial training at Fort Jackson, South Carolina and on 
12 June 1992, he was assigned to cook duties at Fort Lewis, Washington.

A summary of his non judicial punishment includes 3 company grade and 1 field grade Articles 15 under UCMJ.  A summarized Article 15 was imposed against him on 28 September 1992 for failing to report to work on time.  His punishment included an oral reprimand, 14 days of extra duty and 14 days of restriction.  A second Article 15 was imposed against him on 30 November 1992 for violating command policy by having a female guest in the barracks after 2300 hours.  His punishment consisted of reduction to private E-1, forfeiture of $183.00 per month for one month, 14 days of extra duty, and 
14 days of restriction.

A third Article 15 was imposed against him on 29 November 1993 for failing to report for a night fire exercise and dereliction of duty.  His punishment included reduction to private E-1, a suspended forfeiture of $100.00 per month, 14 days of extra duty, and 14 days of restriction.

A fourth, field grade, Article 15 was imposed against him for violating command policy by having a female guest in the barracks after 2300 hours.  His punishment included reduction to private E-1, forfeiture of $416.00 per month for 2 months, 45 days of extra duty, and 45 days of restriction.

Between 2 September 1992 and 19 July 1994, he was formally counseled for 
19 instances of substandard performance including missing physical training (PT) and accountability formation (3); failing a semi annual PT test; disobeying orders (2); being late for work and failing to report for duty (9); leaving his place of duty (3); driving under the influence (DUI) of alcoholic beverages; and illegally being in possession of dining facility items.

On 31 May 1994, a bar to reenlistment was imposed against him for substandard performance.

0n 17 August 1994, a psychiatric evaluation report determined that he was psychiatrically cleared for action deemed appropriate by the command.  A report of medical history indicated that he was in good health with a physical profile of 
1 1 1 1 1 1.  His records also contained a statement signed by 2 medical officials indicating that there had been no evidence of a change in his health since his last medical examination.  The statement further indicated that the applicant refused to acknowledge this statement and did not provide his signature.

On 26 August 1994, a general officer memorandum of reprimand (GOMOR) was imposed against him for his civilian apprehension for DUI.

On 7 September 1994, his chain of command initiated separation action under the provisions of Army Regulation 635-200, Chapter 14 and recommended that his service be characterized under other than honorable conditions.

On 22 December 1994, an administrative separation board of officers determined that he established a pattern of misconduct over a 2 year period and recommended that he be separated with a general discharge.

On 19 January 1995, the separation authority, a lieutenant general, approved the administrative separation board’s recommendation and directed his discharge under honorable conditions.

His DD Form 214, separation document, shows that on 31 January 1995, he was separated under honorable conditions in accordance with the provisions of Army Regulation 635-200, Chapter 14 for patterns of misconduct.  He had completed 
2 years, 11 months and 27 days of creditable service with no lost time and reentry code 3 applied.

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, and convictions by civil authorities.  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 soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

Chapter 30, Title 38 of the US Code established eligibility requirement for participation in the Veterans' Educational Assistance Act of 1984 (New GI Bill).  It provided that individuals who entered an initial period of active duty on or after 1 July 1985 would be automatically enrolled in the program unless they opted to disenroll within a specific time frame established by the individual services.  Once enrolled in the New GI Bill the individual's basic pay was reduced $100.00 per month for each of the first full 12 months of active duty and could not be refunded, suspended or stopped.  An honorable discharge is required for receipt of entitlements, which amounted to $300.00 per month for 36 months, for individuals who completed at least 3 years of active duty.

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.

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’s request for upgrade of his general discharge is not warranted.

2.  Considering the length of time, the pattern of his misconduct, and his overall record of service, the separation authority demonstrated considerable leniency in deciding to issue a general discharge in lieu of a discharge under other than honorable conditions.  

3.  The Board concludes that there is nothing in the evidence of record to merit an upgrade of his general discharge to an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  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 which would satisfy the aforementioned requirement.

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.


________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell



AR .  .  .  .  .  


ISSUES         1.






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