MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 07 MARCH 2002
         DOCKET NUMBER: AR2001063743

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		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: In effect, the applicant requests that his DD Form 214 be corrected to show his character of service as “Uncharacterized,” that the narrative reason for his separation reflect “Secretarial authority,” rather than “Misconduct,” his reentry code reflect a “1” instead of the “3” shown, and that form reflect a separation code commensurate with “Secretarial authority.” He also requests that he be appointed a second lieutenant in the Army National Guard.

APPLICANT STATES: The applicant made no statement, but deferred to counsel.

COUNSEL CONTENDS: That the failure of the Army Discharge Review Board (ADRB) to grant relief was inequitable in that the event which caused his misconduct, a brief AWOL, was overwhelming and did not reflect upon the applicant’s character; and that the applicant’s post-service activity has demonstrated his loyalty to the United States, his devotion to duty, and his outstanding citizenship.

Applicant entered the Army on 8 September 1993. Eight weeks prior to his enlistment, on 21 July 1993, he was married. Seven months prior to the marriage, the applicant graduated from Utah State University. The applicant completed basic training and reported to Fort Benjamin Harrison, Indiana, for advanced individual training, expecting his wife to join him. However, she became involved with another man, told him that she would not stay with the applicant if he remained in the Army, and filed for divorce on 18 November 1993.

On 19 November 1993 the applicant, seeking a discharge, was referred to the community mental health services (CMHS). Counsel indicated that the applicant’s first sergeant indicated that there was no grounds for discharge, a wholly inaccurate statement, in that the applicant was deeply depressed, in shock and unsuitable for further service. The CMHS recommended that the applicant be discharged (entry level) or be given the opportunity to work out his marital problems by rejoining his wife temporarily and then returning (Tab L of applicant’s request). The CMHS indicated that if there was no resolution, a discharge would be strongly recommended. The CMHS indicated that the situation should be resolved within a short period of time to prevent the applicant from further mental or emotional deterioration (Tab L). The command did nothing, nor did it assist the applicant.

The applicant was given emergency leave from 8 to 12 December 1993 to meet with his divorce counsel. He returned from leave and was informed that he would not be discharged and went AWOL in order to work on his marriage and/or divorce. Nonetheless, he maintained contact with his unit, who was aware of his whereabouts. He returned to his unit on 10 January 1994 and was discharged for misconduct on 24 January 1994.
The applicant, although a Canadian citizen, chose to serve in the United States Army. Obtaining a waiver, he enlisted in the Utah Army National Guard on 26 March 1996, has had a distinguished enlisted career and was promoted to pay grade E-6. He was told that he should be an officer. He successfully completed officer candidate school (OCS), but because of the nature of his discharge, he could not obtain a commission. His request for a waiver of the reason for his discharge was disapproved by the National Guard Bureau. The Utah Army National Guard has sought relief, to no avail. The applicant is a teacher of high school students in Texas. The applicant has support from numerous personnel in his attempts to be an officer.

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

The applicant enlisted in the Army for four years on 8 September 1993, completed basic training, and on 10 November 1993 transferred to Fort Benjamin Harrison, Indiana for advanced individual training.

At Tab Tabs G, H, and I to the applicant’s request are documents pertaining to the applicant’s marriage, degree, and court summons.

A 19 November 1993 report of mental status evaluation indicates that the applicant was evaluated at his commander’s request. That report indicated that there was no evidence of any psychiatric disorder, and that the applicant was psychiatrically cleared for any administrative action deemed appropriate.

A 19 November 1993 psychosocial assessment shows that the applicant was referred by his unit because of a potential discharge under the provisions of Army Regulation 635-200, chapter 11. That report indicated that the applicant had an adjustment disorder with mixed emotional features, and psychosocial stressors because his wife had moved home [to be with her mother] and he was unable to speak to his wife (Tab J). A 30 November 1993 chronological record of medical care at that tab indicates that the applicant stated that he wanted out of the Army. A 30 November 1993 medical record indicates that the applicant’s first sergeant stated there were no grounds to discharge the applicant. A 14 December 1993 medical record at that tab indicates that the applicant had a change of heart and requested a discharge.

In a 26 November 1993 letter to an NCO, the applicant stated that he was not holding up very well physically, mentally, or spiritually and that he was beginning to crack at the seams. He stated that he needed to request a chapter as soon as the psychological reports were in. He stated that he felt that he was degenerating as a person due to the stresses of his personal life.

A 12 January 1994 report of medical examination indicates that the applicant was medically qualified for retention with a physical profile serial of 1 1 1 1 1 1. In the report of medical history he furnished for the examination, the applicant did not comment on his health, but did indicate that he had or had had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort.

A 12 January 1994 counseling form indicates that the applicant was counseled for being AWOL and because he was being recommended for elimination from the service. The counselor noted his insurmountable family problems, and stated that the applicant had often expressed openly why he did not desire to be in the Army. He stated that because of the applicant’s lack of motivation and lackadaisical attitude, he was not the caliber of soldier for retention in the Army. The applicant made no statement, but acknowledged having been counseled.

On 14 January 1994 the applicant’s commanding officer notified the applicant that he was initiating action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, for being AWOL for 28 days. He stated that he was recommending that the applicant receive a general discharge.

The applicant consulted with counsel, stated that he had been advised of the contemplated action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He declined to submit a statement in his own behalf.

On 19 January 1994 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged. He stated that the applicant had been AWOL from 13 December 1993 to 10 January 1994. He stated that the applicant had received nonjudicial punishment under Article 15, UCMJ. He did state that the applicant was experiencing marital problems that resulted in his wife filing for a divorce, and that the applicant was upset and stated that the only way to resolve the problem was to be discharged. He stated that his drill sergeant, first sergeant, and himself (commanding officer) had counseled him numerous times and sent him to the chaplain and to mental health for counseling. Nonetheless, the applicant decided to go AWOL. He stated that the applicant did not have the qualities to be a soldier and had no future potential, and that the applicant wanted to be discharged by whatever means.

On 24 January 1994 the separation authority approved the recommendation and directed that the applicant receive a characterization of service under honorable conditions. The applicant was discharged on 24 January 1994. He had 3 months and 19 days of service, and 28 days of lost time.

On 10 April 1996 the applicant enlisted in the Utah Army National Guard for 8 years. Tabs O and P show documents reflecting the applicant’s completion of training courses and certificates of appreciation/achievement.


On 4 March 1997 the applicant was notified that he was accepted for officer candidate school (Tab R). He completed OCS on 16 August 1997 (Tab S). On 4 August 1997 the Utah National Guard requested that a moral waiver be granted so that the applicant could be commissioned (Tab T). On 29 August 1997 the National Guard Bureau disapproved the request for a waiver, stating that his DD Form 214 indicated that he was discharged because of misconduct, that the reason for that separation fell into the category of unsatisfactory service and could not be waived.

On 13 June 1998 the commanding officer of the 19^th Special Forces Group (Airborne) requested to the Commander of the Army Reserve Personnel Center at St. Louis that the misconduct narrative be removed from the applicant’s DD Form 214. He stated that he had been associated with the applicant for 2 1/2 years, that he was an outstanding young man, reliable and trustworthy, and that his integrity was of the highest caliber. He stated that his conduct had always been what he expected from an officer (Tab V).

Tabs W and X show the applicant’s teaching certificates. At Tab Y are letters on behalf of the applicant. These letters are from two associate professors of Southern Utah University, a person from the Cedar City Institute of Religion, two instructors from that institute, a dentist from Cedar City, Utah, and a retired civil engineer who was an officer during the Korean conflict. All attest to his honesty, good character, and integrity.

On 29 December 1999 the ADRB, in an unanimous opinion, denied the applicant’s request to change his discharge (Tab C of applicant’s request). That board did state that the applicant should have been separated with an “Uncharacterized” characterization of service, but that board determined that a change in characterization from “general, under honorable conditions” to “uncharacterized” would not be favorable to the applicant and voted not to change it. The board concluded that the narrative reason for discharge was proper and equitable and voted not to change it.

On 10 January 2000 the applicant appeared before the ADRB. However, that board again, in an unanimous opinion, denied the applicant’s request to change his discharge (Tab D), stating that the applicant’s contentions that he was not properly discharged and that his separation action constituted a breach of contract was not supported by the evidence of record.

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. Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM. An absentee returned to military control from a status of absent without leave may be separated for commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct. However, if characterization of service under other than honorable conditions is not warranted for a soldier in entry level status, service will be described as uncharacterized. Entry level status is defined as the first 180 days of continuous active duty.

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 discharge for misconduct was appropriate. Notwithstanding counsel’s arguments, the applicant was given assistance by unit personnel on numerous occasions, e.g., counseling by unit personnel, the chaplain, mental health officials, etc., but in spite of this help, and even after being granted leave in order to work out his problems, the applicant took it on himself to go AWOL, after returning from leave and discovering that he was not going to be discharged [entry level separation]. The applicant precipitated the discharge action. He
wanted to be discharged as indicated in medical reports in November 1993 and in a 26 November 1993 letter to an NCO. The applicant’s commanding officer, when recommending that the applicant be discharged for misconduct, stated that the applicant wanted to be discharged by whatever means.

2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The applicant was afforded the opportunity to submit statements in his own behalf when notified of the basis of the action to separate him for misconduct, but he declined to do so. The character of the discharge is commensurate with the applicant's overall record of military service.

3. While the Board has taken cognizance of the applicant's personal problems prior to his discharge, the letters of support that he has received, and his good post-service conduct; none of these factors, either individually or in sum, warrant the relief requested. The Board does agree with the remarks made by the ADRB in that the applicant’s characterization of service should have been “uncharacterized,” instead of “under honorable conditions,” and concurs that to correct his character of service would not be favorable to him. Should the applicant persist, however, in changing this one item on his DD Form 214, the Board will act favorably upon his request.

4. Because the Board has determined not to upgrade his discharge as he has requested, his request to be appointed a second lieutenant is likewise not approved.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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 that would satisfy that 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

__RVO__ __JPI ___ __RKS__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063743
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020307
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	360
3.
4.
5.
6.