MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 May 2002
         DOCKET NUMBER: AR2001064716

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. John T. Meixell		Member
Mr. Kenneth W. Lapin		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 under honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, he faithfully served his obligated period of service and that he was penalized for one mistake. He states that because he served in the military when many others have not that he deserves the upgrade.

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

The applicant enlisted in the Georgia Army Reserve National Guard (GaARNG) on 9 February 1974 and entered active duty for training on 28 June 1974. He was released from active duty and returned to the GaARNG on 30 October 1974. He had served 4 months and 3 days on active duty and had 4 months 19 days of prior inactive service. There is no indication, in the record, of what service the applicant rendered for the period between 31 October 1974 and 15 June 1979.

On 9 May 1979, orders were issued directing that the applicant be discharged from the GaARNG for failure to participate and ordered to report for involuntary active duty effective 16 June 1979. At that time the applicant was issued a General Discharge Certificate by the GaARNG for discharge from his National Guard status only.

The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for the period 4 September 1979 to 10 September 1979. The punishment included a reduction to pay grade E-1, forfeiture of $100 and 14 days extra duty. The applicant appealed and the appeal was denied.

On 6 December 1979, the applicant again received NJP for six separate counts of being absent from his appointed place of duty. His punishment included forfeiture of $200 per month for two months and 30 days restriction and extra duty.

On 7 January 1980, the applicant’s company commander recommended that he be barred from reenlistment. The company commander indicated that this action was prompted by;

“SM (service member) has demonstrated through both his record of Article 15s and counseling statements that he is totally unsuitable for future reenlistment in the United States Army. He has been counseled on numerous occasions by his entire chain of command reference his undependability, failure to obey orders and his poor performance of


duty. His unkempt personal appearance, lack of soldierly bearing and negative attitude do not indicate the behavior of a career soldier. SM simply refuses to expend the necessary effort to improve either his duty performance or his personal appearance.”

The bar was approved and the applicant acknowledged his right to appeal the bar on 29 January 1980.

The applicant again received NJP for being absent from his place of duty on 19 August 1980.

The applicant went AWOL on 8 September 1980 and was dropped from his unit’s rolls on 7 October 1980. He was apprehended by civil authorities on 7 October 1980 and confined until he could be returned to military control.

The applicant again went AWOL for the period of 5 December 1980 through 8 December 1980.

There is no documentation of any disciplinary action taken in regards to the applicant’s two above noted periods of AWOL.

On 8 January 1981, as the applicant approached the expiration of his term of service (ETS), his company commander recommended that his period of service be characterized as under honorable conditions and that he be issued a General Discharge Certificate. The company commander cited the applicant’s history of NJP and poor overall service.

The discharge authority approved the recommendation and the applicant was released from active duty on 12 January 1981 with a reason for separation of completion of required service, a characterization of service of under honorable conditions, and a separation code of LBK (completion of required service with reenlistment denied).

Army Regulation 27-10 provides policy for the administration of military justice. Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial. The imposing commander is not bound by the formal


rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case. Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Army Regulation 635-200, sets forth the purpose and policies for enlisted personnel separations. Chapter 1, as in effect at that time, outlines the criteria for characterization of service. Paragraph 1-13a states that an honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty. Paragraph 1-13a(1) in pertinent part states: “A soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art l5…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service.” Paragraph 1-13b states that a general discharge (GD) is a separation under honorable conditions issued to a soldier whose military record was satisfactory but not so meritorious as to warrant an honorable 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. The Board finds that the applicant’s contention, that his characterization of service is inappropriate because he only made one mistake and because he voluntarily served when others did not serve at all, to be without merit.

2. The applicant’s service was not totally voluntary. He was ordered to active duty for failure to comply with his National Guard obligation. While on active duty he committed offenses which could have resulted in a separation for misconduct. What creditable service he did render does not completely outweigh the frequency or nature of these offences. His service was clearly not meritorious.

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

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.

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

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INDEX

CASE ID	AR2001064716
SUFFIX
RECON
DATE BOARDED	20020507
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0305
2.
3.
4.
5.
6.