MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 02 December 1998
         DOCKET NUMBER: AC97-11665

         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. Theodore Heartley		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’connor, Jr.		Chairperson
Mr. George D. Paxson		Member
Mr. John H. Kern		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: That he be returned to active duty and paid basic pay and allowances, retroactively, to the date of his discharge.

COUNSEL CONTENDS: In effect, that the applicant was wrongfully discharged. He also states that one of the applicant’s supervisors poisoned the attitude of the chain of command toward the applicant after having his sexual advances rebuffed by the applicant’s spouse. This same supervisor, who in an earlier assignment, had been punished by Article 15 for fraternization, previously rated the applicant as a superior soldier and recommended him for noncommissioned officer (NCO) of the quarter. He further contends that other documents, by their content, indicate command’s intent to “nail” him. He also contends that the applicant was summarily discharged without due process.

In support of his request, the applicant submitted numerous documents attesting to his duty performance and character as well as letters of recommendation, commendation, NCO evaluation report (ER), statements of rebuttal, requests for assistance and a congressional inquiry.

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

His official military personnel file (OMPF) is incomplete however, available records show that he enlisted on 18 May 1989 for a period of 5 years. He successfully completed his initial training as a medical equipment repairer and attained the rank of sergeant (E-5).

The NCOER, submitted by the applicant, for the rating period from June 1992 to February 1993, describes his duty performance, generally, as successful, an average rating. The rater in this report was the applicant’s supervisor and the NCO whom counsel alleges to have made sexual advances toward the applicant’s spouse.

A letter of recommendation for the NCO of the quarter board, submitted by the applicant and signed by his supervisor, the rater on his NCOER for the rating period June 1992 to February 1993, characterizes him as diligent, strives for excellence and serves as an example to all NCOs. The letter indicated that his first sergeant non concurred with his supervisor’s assessment and recommendation.

His records contain a letter of indebtedness in the amount of $5,546.10 for overpayment of basic allowance for quarters (BAQ) for the period of 19 October 1993 to 30 November 1994. He was assigned to government quarters on 19 October 1993.

During his tour of duty in Germany, he received a number of formal performance counseling statements. He was counseled on 28 October 1994 for not being at his place of duty and taking care of personal business during a field training exercise; on 29 November 1994 for lacking professionalism and responsibility; and on 9 December 1994 for not providing a vehicle ground guide.

On 21 December 1994, he received a letter of reprimand from his unit commander for not providing a vehicle ground guide, his second traffic offense.

His records contain an equal opportunity (EO) report of investigation of allegations made by him concerning denial of promotion and career advancement; being singled out for punishment; and being singled out for harassment. The report indicated that the allegations were thoroughly investigated and unfounded.

His records contain a letter issued by the Office of the Provost Marshal, U. S. Army Europe indicating that his driving privileges were suspended for 6 months.

His records contain an undated memorandum for record from his supervisor, a chief warrant officer (CW2), summarizing previous rehabilitative efforts. The memorandum stated, in effect, that he had received numerous “fresh starts” including taking over 2 months of leave and receiving mental health counseling which failed to change his conduct and behavior; that his claims of intentional harassment and prejudicial behavior by command were investigated and found to be groundless; and that despite performance counseling by his battalion commander, he persisted in disruptive and unprofessional conduct.

His supervisor further stated that the command made considerable effort to improve his performance including moving him under different supervision. All of these efforts failed to improve his performance and he refused to take responsibility for his actions.

On 23 April 1995, his supervisor, a (different) chief warrant officer (CW2), recommended that he be separated for the good of the service in accordance with the provisions of Army Regulation 635-200, Chapter 13. His supervisor stated in effect, that he had a long, well documented history of disruptive, self serving behavior; that his continued efforts to raise unfounded questions concerning his personal treatment by supervisor after supervisor shows that this behavior will continue regardless of any change to present or future duty assignment; and that there is little possibility that any further counseling or training could break his pattern of misconduct and he has no potential for leadership or advancement beyond his present grade.

His supervisor further stated that, along with the battalion commander, he also counseled the applicant regarding the results of his EO complaint and that those results were final. However, he refused to put the past behind him; that he, obsessively, saw himself as the object of conspiracy; that he believed anything that happened in the workplace, not to his liking, was retaliation for his past complaint; that he was counseled for disparaging the character of senior NCOs by continuing to accuse them of reprisal and discrimination; and that he has not responded to formal counseling and viewed sterner verbal admonishment as an insult.

His DD Form 214, separation document, shows that he was separated for unsatisfactory performance on 21 June 1995 under the provisions of Army Regulation 635-200, Chapter 13. His character of service was honorable and reentry code 3 applied. He had completed 6 years, 1 month and 4 days of creditable service with no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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. Counsel’s contention that the applicant was denied due process and wrongfully discharged lacks merit when the evidence of record is considered.

2. There is nothing in the evidence of record or in the evidence submitted by him that would indicate his chain of command conspired to separate him from military service. The evidence clearly supports the contrary.

3. It would appear that the chain of command expended considerable resources and demonstrated extraordinary tolerance in an effort to provide him ample opportunity to correct his conduct and behavior which he, subsequently, failed to do.

4. The Board recognizes his desire to return to military service. Since he was separated with a waivable disqualification, he should seek the assistance of his local recruiter for preparation of a waiver application.

5. 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.

6. 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.

7. 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




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.