MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001056822

         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. Carl W. S. Chun		Director
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Harry B. Oberg		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 his Certificate of Release or Discharge (DD Form 214) be corrected to show that he was discharged in the rank of Sergeant (E-5) instead of Private (E-1) as currently reflected.

APPLICANT STATES: That the Record of Proceedings under Article 15, Uniformed Code of Military Justice (UCMJ) initiated on 28 May 1985 shows the incorrect social security number. In support of his appeal he submits a copy of the Article 15, UCMJ which reflects an SSN that is not consistent with his. He also submits a copy of orders dated 23 October 1981 promoting him to the pay grade of E-5 and a copy of his General Discharge Certificate.

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

On 29 August 1978, he enlisted in the Army for 3 years in the pay grade of E-1. He successfully completed his training as an infantryman. He remained on active duty through a series of continuous reenlistments.

The applicant was promoted to pay grades E-2 on 1 January 1979, to E-3 on 1 February 1979, to E-4 on 21 July 1980 and to E-5 on 6 October 1981.

Nonjudicial punishment was initiated against the applicant on 9 October 1984 for being derelict in the performance of his duties by negligently failing to keep his assigned vehicle up to company and battalion standards, for negligently failing to perform proper maintenance on said vehicle, and for negligently failing to stay awake while on duty. His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of $231.00 a month for 2 months, 30 days restriction and 30 days extra duty.

On 20 May 1985, sworn statements were obtained from soldiers in the applicant’s unit to determine whether he had fallen asleep while on guard post duty. The applicant’s commanding officer determined that he had, in fact, fallen asleep and determined that punishment under the UCMJ should be imposed. Accordingly, on 29 May 1958, he was furnished an Article 15 under the UCMJ. He acknowledged receipt of the Article 15 on 3 June 1985 and he opted to demand trial by a court-martial.

Charges were preferred against the applicant on 28 June 1985, as a result of his demand for trial by a court-martial. He was charged with two specifications of being derelict in the performance of his duties by negligently failing to remain alert on duty as Sergeant of the Guard and for being found sleeping on his post.

On 26 August 1985, the applicant was notified that he was being barred to reenlistment. The commander cited his record of NJP and a dishonored check dated 30 May 1985, written to the Post Exchange as a basis for the bar to reenlistment. The commander also stated that the applicant had a constant lack of motivation and deficiencies in professional and leadership characteristics and that he had a low aptitude for retention as evidenced by his low general test scores.

The applicant was notified that charges were pending against him and on 19 September 1985, after consulting with counsel, he waived his rights and he submitted a request for discharge under the provisions of Army Regulation
635-200, chapter 10 for the good of the service in lieu of trial by court-martial.

He acknowledged receipt of the bar to reenlistment and indicated that he wished to submit an appeal. In his undated appeal, he stated that he received the 9 October 1984 NJP because he did not do what he was supposed to do by not performing maintenance checks on the jeeps at the motor pool. He stated that, instead of performing maintenance checks on the jeeps, he had a paint job to do that he believed to be a more crucial duty. He stated that he was responsible for both jobs and had he not completed the paint job, he would have still gotten into trouble although he was doing the job of five people. He went on to state that the bank was partly at fault of the dishonored check because he wrote the check on 30 May 1985 and his check was not deposited into his account until 27 June 1985. He stated that he had low tests scores because he was never allowed to go to courses to further his education.

The appropriate authority approved the request for discharge on 24 September 1985 directing that the applicant be reduced to the lowest enlisted pay grade and furnished a discharge under other than honorable conditions. Accordingly, on 1 October 1985, the applicant was reduced to the lowest enlisted pay grade and he was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. He had completed 7 years, 1 month and 3 days of total active service. Contrary to the discharge approval authority’s direction, he was furnished a General Discharge Certificate.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, also provides that when a soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600-200.

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. Although an administrative error was made during the preparation of the applicant’s DD Form 214, which resulted in his being furnished a discharge under honorable conditions (general), the action by the Army reducing him to the pay grade of E-1 was proper.

2. The Board has noted the applicant’s contentions. However, the fact that the Article 15 in question does not reflect his correct SSN is a moot point since the Article 15 was not imposed, but based on his own demand converted to court-martial processing. He subsequently requested separation for the good of the service.

3. The evidence of record clearly shows that at the time he submitted his discharge for the good of the service in lieu of trial by court-martial, the discharge approval authority directed he be reduced to the lowest enlisted grade and discharged. Therefore, the rank and pay grade (Private E-1) is correct as currently reflected on his DD Form 214.

4. 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 this requirement.

5. 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

___cla __ __hbo___ ____ao__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001056822
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/30
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1985/09/19
DISCHARGE AUTHORITY	AR 635-200, ch. 10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.