MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 April 2002
         DOCKET NUMBER: AR2001065659

         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. William Blakely		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Richard T. Dunbar		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, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD); that the narrative reason for his separation be changed to expiration term of service (ETS); and that his records be corrected to reflect the correct dates of his service.

APPLICANT STATES: In effect, that his separation from the Army was improper because he did not receive adequate counseling and rehabilitation. He further states that, he was not offered a rehabilitative transfer and the regulatory requirement for a rehabilitative transfer prior to early separation was not met.

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

On 18 November 1982, he entered the Army for a period of 3 years. He successfully completed training and was awarded military occupational specialty (MOS) 11B (Infantryman).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. It also confirms that the highest rank and pay grade the applicant attained while serving on active duty was private/E-2 (PV2/E-2).

The applicant’s record does contain a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated: 11 October 1983, for wrongfully communicating a threat to a non-commissioned officer (NCO); and 17 January 1984, for falsely writing the signature of his company commander.

The applicant was assigned to B Company, 5 Battalion, 16^th Infantry, 1^st Infantry Division, Fort Riley, Kansas. During his tenure of assignment, the following rehabilitation efforts were made: he was enrolled in and attended the Individual Effectiveness Course (IEC) at the United States Army Correctional Activity (USACA), Fort Riley, Kansas; and he was counseled on numerous occasions for his misconduct and substandard performance.

In addition, on 8 May 1984, he was issued a Letter Of Reprimand by his unit commander for his failure to maintain the minimum standards of security and on his commitment to the Army and to complete training. He was further informed that his failure to adjust his attitude would result in his being recommended for discharge.

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On 10 May 1984, the commander of the USACA addressed a letter to the applicant’s unit commander, Subject: Unsuccessful Completion of IEC, pertaining to the applicant. This letter confirmed that the applicant failed to successfully complete the IEC and that the course cadre recommended his elimination from the service under the provisions of chapter 14, Army Regulation 635-200. On this same date, the USACA commander submitted a recommendation for the applicant’s discharge from the service to the commander of the 1^st Infantry Division and Fort Riley Kansas. This recommendation was based on the applicant’s failure to successfully complete the IEC.

On 2 July 1984, the applicant was notified by his commander that separation action was being initiated to eliminate him from the Army under the provisions of chapter 14, Army Regulation 635-200, pattern of misconduct. The commander stated that the basis for the separation action was the applicant’s failure to respond to counseling, unsatisfactory performance of duty, and failure to successfully complete the IEC, and he requested that the rehabilitation requirements of paragraph 1-18c, Army Regulation 635-200 be waived.

The applicant acknowledged receipt of the separation notification and after consulting counsel and being advised of the basis for the contemplated separation action and its effects, he waived the following rights: to have his case considered by a board of officers; to personally appear before a board of officers; and to consulting counsel. In addition, he elected not to submit a statement in his own behalf.

The appropriate separation authority waived the rehabilitation requirements of paragraph 1-18c, Army Regulation 635-200, and directed the applicant’s GD under the provisions of chapter 14, Army Regulation 635-200. On 17 July 1984, the applicant was discharged accordingly. On the date of his discharge, the applicant had completed a total of 1 year and 8 months of active military service.

There is no evidence that the applicant applied to the Army Discharge Review board for upgrade of his discharge within its 15-year statue of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established the policy and prescribed the procedure 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. It further established that separation action for misconduct would be taken under this provision only when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.

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 notes the applicant’s contention that that his separation from the Army was improper because he did not receive adequate counseling and the regulatory rehabilitation requirements were not met in his case. However, the Board finds these claims lack merit.

2. The evidence of record shows that the applicant’s command attempted to assist him in performing and conducting himself to Army standards by providing counseling and by the imposition of NJP. Further, before initiating action to separate the applicant, the command ensured he was appropriately counseled about the deficiencies which could lead to separation and that he was afforded a reasonable opportunity to overcome noted deficiencies through enrollment and attendance at the IEC. He failed to subsequently conform to required standards of discipline and performance and only at that time did the command appropriately determine that he did not demonstrate the potential for further military service.

3. The evidence of record also confirms that prior to approving the applicant’s discharge, the separation authority waived the regulatory rehabilitative transfer requirement. The Board is satisfied that all requirements of law and regulation were met and that the applicant’s administrative separation was accomplished in compliance with applicable regulations in effect at the time.

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

__MKP__ __EJA__ __RTD___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065659
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/04/11
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19840717
DISCHARGE AUTHORITY	AR635-200 . . . . .
DISCHARGE REASON	Patten of Misconduct
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	67.00
2.
3.
4.
5.
6.