PROCEEDINGS


         IN THE CASE OF:
                                   
        

         BOARD DATE: 1 August 2001
         DOCKET NUMBER: AR2001052274


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Ernest W. Lutz		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge and that his rank be restored to pay grade E-4(P).

3. The applicant states, in effect, that he reenlisted because he was promised that he would be allowed to attend air traffic control school. When the promise was broken, he engaged in misconduct so that he would be released or discharged from the service. Since being discharged, he has become a family man. He is committed to his faith and he has become a missionary in his church. He credits the Army with helping in the development of his character.

4. On 2 July 1981, he enlisted in the Regular Army (RA) for 3 years. His military occupational specialty (MOS) was 13E (Cannon Fire Direction Specialist). He was advanced to pay grade E-4 on 1 November 1982, which was the highest grade that he achieved. He was honorably discharged on 13 May 1984 for the purpose of reenlistment. He had completed 2 years, 10 months and 12 days of active service. He was awarded the Good Conduct Medal, the Army Service Ribbon, the Overseas Service Ribbon and the Hand Grenade Expert Badge.
No DD Form 214 (Certificate of Release or Discharge from Active Duty) was issued after he honorably completed this period of service due to this immediate reenlistment.

5. On 14 May 1984, while assigned to Schofield Barracks, Hawaii, he reenlisted in the RA for 5 years in pay grade E-4. His reenlistment option was for duty at Fort Polk, Louisiana. There is no evidence that he reenlisted to attend air traffic control school. On 8 August 1984, he was assigned to Fort Polk. His MOS remained unchanged.

6. On 10 September 1985, a professionally trained psychiatrist evaluated the applicant due to a physical altercation with his spouse on 7 September 1985. The psychiatrist determined that he suffered from alcohol abuse and dependence, manifested by a daily intake of approximately "a fifth" of hard liquor. He exhibited an adjustment disorder with depressed mood, manifested by depressed feelings, sleep and appetite disturbance, but no suicidal feelings. He demonstrated no evidence of a personality disorder. As a child, the applicant was exposed to family violence that may have contributed to his behavior and attitude towards his spouse. He was determined to have no mental disease or defect and he had the capacity to conform his conduct to the requirements of the law. He was mentally responsible for his behavior and he possessed the mental capacity to participate in administrative judicial proceedings.

7. Between September and October 1985, the applicant was counseled numerous times for failure to repair, for illegally using a controlled substance (marihuana), and for his poor performance of duty.
8. On 22 October 1985, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for knowingly and wrongfully using some amount of marihuana between 26 July and 26 August 1985; for a domestic disturbance and assault consummated by a battery during a physical altercation with his spouse on 7 September 1985; and for failure to go to his appointed place of duty at the prescribed time on 10 September 1985. His punishment included reduction from pay grade E-4 to pay grade E-1, forfeiture of $310.00 per month for 2 months and 45 days extra duty and restriction.

9. On 28 October 1985, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.

10. On 29 October 1985, the applicant consulted with legal counsel and he was advised of the nature of the contemplated separation action and its effects. He was further advised of the rights available to him. He was not entitled to consideration or a personal appearance by a board of officers. He did not submit a statement in his own behalf. On the same day, the intermediate commander recommended approval.

11. On 30 October 1985, a mental status evaluation cleared him for administrative action deemed appropriate by his command. On 7 November 1985, a physical examination determined he was qualified for separation.
On an unknown date, the separation authority approved the separation with a GD.

12. On 18 November 1985, the applicant was separated with a GD, under the provisions of chapter 14, Army Regulation 635-200, for misconduct. On the enlistment under review, he had completed 1 year, 6 months and 5 days of active military service and he had no recorded lost time. He was awarded the Noncommissioned Officer Professional Development Ribbon. His DD Form 214, issued on 18 November 1985, shows both periods of service. His total active service equals 4 years, 4 months and 17 days. His DD Form 214 also shows awards for both periods of service.

13. 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 considered appropriate, but a GD or an honorable discharge may also be awarded.

CONCLUSIONS:

1. The applicant's GD issued on 18 November 1985, for misconduct, was administratively correct and in conformance with the applicable regulations then in effect.

2. The Board determined that both the characterization of service and the narrative reason for separation were appropriate considering all the facts of the case. There is no indication in the record that the applicant reenlisted for training as an air traffic controller, only that he reenlisted for duty at Fort Polk.

3. The overall quality of the applicant’s last period of service does not warrant an upgrade of the discharge. However his prior period of service from 2 July 1981-13 May 1984 should be considered a complete and unconditional separation. To do otherwise would work as an injustice by attaching a stigma to his total period of military service and he would be denied certain veterans benefits for his first period of enlistment when the majority of his service was honorable.

4. The applicant was reduced from pay grade E-4 to pay grade E-1 on 22 October 1985, as a result of receiving an NJP. He was never again advanced to pay grade E-4. The reduction was in compliance with the UCMJ and he has failed to provide mitigating circumstances that would overcome his actions that resulted in this reduction. Additionally, there is no evidence to indicate that he was ever an E-4(P), promotable to pay grade E-5.

5. The Board congratulates the applicant and notes his post service achievements. However, these accomplishments do not overcome his repeated misconduct that resulted in his GD.

6. Since the applicant was issued no DD Form 214 at the completion of his first period of service, and the DD Form 214 that was issued to him on 18 November
1985 does not show that he honorably completed his first period of service, it would be appropriate at this time to issue him a DD Form 215 (Correction to DD
Form 214) showing in Item 18 that there was a period of honorable service from 2 July 1981-13 May 1984, with a complete and unconditional separation at the end of this period of service that equals 2 years, 10 months and 12 days.

7. In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by issuing to the individual concerned a DD Form 215 showing in
Item 18 that he honorably completed his first period of service from 2 July 1981-13 May 1984 and was discharged for the purpose of immediate reenlistment on 14 May 1984.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__JH____ __MHM__ ___EWL GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___ June Hajjar____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001052274
SUFFIX
RECON
DATE BOARDED	20010801
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19851118
DISCHARGE AUTHORITY	AR 635-200, Chapter 14
DISCHARGE REASON	A61.00
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	144.6100
2.
3.
4.
5.
6.