MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 June 2002
         DOCKET NUMBER: AR2001064106

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Allen L. Raub		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 discharge be upgraded.

APPLICANT STATES: The applicant makes no additional statement with his application but in a letter to his Congressman indicates he needs the correction to obtain educational benefits. As supporting evidence he provides his Regular Army enlistment contract; his April 1995 Army National Guard (ARNG) enlistment contract; his ARNG Certificate of Release or Discharge from Active Duty, DD Form 214; a diploma showing he completed the Medical Specialist Course in 1989; and an Honorable Discharge Certificate from the New Jersey ARNG showing he was transferred to the Retired Reserve on 1 January 1999.

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

He initially enlisted in the New Jersey ARNG in December 1987. On 17 June 1998, he requested release from the ARNG and enlistment in the Regular Army. His unit commander recommended approval. On 2 September 1998, he enlisted in the Regular Army.

(An Honorable Discharge Certificate, NGB Form 55B, shows the applicant was discharged from the ARNG on 1 January 1999 and transferred to the Retired Reserve. His Report of Separation, NGB Form 22, shows he was discharged from the ARNG on 20 January 1999 for enlistment in a component of the Armed Forces.)

On 15 June 1999, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for three times failing to go to his appointed place of duty and making a false official statement with intent to deceive.

On 6 October 1999, the applicant accepted NJP under Article 15, UCMJ for four times failing to go to his appointed place of duty.

On 22 November 1999, the applicant accepted NJP under Article 15, UCMJ for being disrespectful in language towards a superior noncommissioned officer and disobeying a lawful order to be at ease.

On 16 December 1999, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from a superior commissioned officer.

Around March 2000, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-200, chapter 14, for pattern of misconduct. The recommendation and the applicant’s acknowledgment of the separation action are not available. He apparently requested that his case be considered by an administrative separation board.

On 31 March 2000, the applicant’s commander prepared a performance statement. He stated the applicant had received four field grade and one company grade Article 15s since being on active duty. (One of the Article 15s is not available.) The applicant had been diagnosed with and given a treatment plan for ankylosing spondylitis but he failed to perform the stretching and exercise as laid out in his profiles and directions. He received negative counseling for failure to take his medications. He complained of side effects but failed to follow the guidance of qualified medical personnel or act under their advice. His appearance and hygiene were the subject of many negative counseling sessions. He often failed to be in the proper place of duty at the prescribed time.

On 12 July 2000, an administrative separation board was held. Witnesses for the Government testified, substantiating the commander’s statement. The applicant testified and refuted the testimony of the Government witnesses. No witnesses for the applicant testified. The board found that by a preponderance of the evidence he committed a pattern of misconduct and that his misconduct warranted separation. The board recommended the applicant be separated due to his misconduct with a discharge under other than honorable conditions.

On 15 September 2000, the appropriate authority reviewed both the administrative separation packet and the medical evaluation board proceedings (not available) on the applicant and determined that the applicant’s medical condition was not a direct or substantial contributing cause of the conduct that led to the recommendation for separation. He also determined that there were no other circumstances that would warrant disability processing instead of further processing for administrative separation. He approved the recommendation for separation and directed the applicant receive a discharge under other than honorable conditions.

On 22 September 2000, the applicant was discharged, with a discharge under other than honorable conditions, in pay grade of E-1 under the provisions of Army Regulation 635-200, chapter 14 for misconduct. He had completed a total of 2 years, 5 months, and 20 days of creditable active service and a total of 10 years, 3 months, and 2 days of service for pay and had no lost time.

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.

On 16 May 2001, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

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. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. Considering his numerous infractions of military discipline during his Regular Army enlistment, the characterization of his discharge as under other than honorable was and still is appropriate.

3. The Board notes that there are errors on the applicant’s NGB Form 55B and NGB Form 22 regarding his date of discharge and, on his NBG Form 55B, the component to which transferred.

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

__KAK__ __MHM__ __ALR__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064106
SUFFIX
RECON
DATE BOARDED	2002/06/18
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2000/09/22
DISCHARGE AUTHORITY	AR 635-200, ch 14
DISCHARGE REASON	A64.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.