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Decision Text

ARMY | BCMR | CY1996 | 9608815C070209
Original file (9608815C070209.txt) Auto-classification: Denied
APPLICANT REQUESTS:  In effect, that his discharge be revoked, that he be retained in the Army Reserves or transferred to the Retired Reserve or that his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  In effect, his discharge was not warranted under applicable regulations and that the facts do not support his separation under any circumstances.

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

He initially joined the Army Reserve in 1973 and began his last term of service on 27 September 1990 when he reenlisted for 3 years.  The applicant's record of service prior to the incident for which separation action was initiated is free of any disciplinary infractions.

On 23 March 1994 the applicant's unit commander initiated separation action on the applicant, under the provisions of paragraph 7-11c, AR 135-178 for commission of a serious offense.  The commander cited the reason for the separation action as the applicant’s violation of Articles 90 and 128 of the UCMJ, in that, on 5 March 1994 he assaulted a commissioned officer with a dangerous weapon.

On 22 April 1994 the applicant completed his election of rights on which he requested that: he be provided counsel; his case be considered by a administrative separation board of officers; and that he personally appear before the administrative separation board of officers.

On 14 December 1995 an administrative separation board of officers convened to consider the applicant's case.  The applicant personally appeared with counsel and presented his testimony regarding the incident for which separation action was initiated.  The administrative separation board found that the allegations set forth in the notice of separation pertaining to the applicant were substantiated by the evidence presented.  Additionally, the separation board recommended the applicant be discharged and his service be characterized as under other than honorable conditions.


The separation board findings and recommendations were approved by the appropriate authority and the applicant was cleared for discharge at the appropriate personnel command level based on a determination that he had over 18 but less that 20 years credible service for retired pay.  Accordingly, on 23 May 1996 the applicant was discharged from the United States Army Reserve under other than honorable conditions.

Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the Army National Guard of the United States and the United States Army Reserve.  Chapter 7 establishes policy and 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.  The normal characterization of service for a soldier separated under the provisions of Chapter 7 is normally under other than honorable conditions.

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.  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 the aforementioned requirement.

2  A properly constituted administrative separation board, at which the applicant appeared with counsel, recommended the applicant be discharged under other than honorable conditions.  The appropriate authority approved the recommendation of the board and the applicant's discharge was cleared at the proper command level based on his years of credible service for retired pay.  The evidence of record nor the evidence provided by the applicant is sufficient to establish that the applicant's years of credible service for retired pay exceeds that which was documented at the time of his separation.
3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Even though a significant period of time elapsed between the initiation of separation action and the administrative separation board hearing, there is no evidence to suggest this prejudiced the final outcome of the case.

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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director

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