MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 April 2002
         DOCKET NUMBER: AR2001066144

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Roger W. Able		Member
Ms. Karen Y. Fletcher		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); and that the authority and narrative reason for his separation be changed.

APPLICANT STATES: In effect, that his service record will clearly indicate that his service up until the time of the alleged incident was impeccable. The administrative separation board he appeared before was not bound by the rules of evidence, and did not consider his record of military service prior to making a decision. He comments that, he served in every branch of the United States Army and was honorably discharged from each. He concludes that one incident should not have been the reason for such a discharge and he was offered no marital counseling or rehabilitative procedures at the time.

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

On 15 January 1991, the applicant began the enlistment under review. At the time, he had completed 4 years, 3 months, and 28 days of prior honorable active military service and held the rank of specialist four/E-4.

The applicant’s Personnel Qualification Record (DA Form 2-1) shows that during this enlistment, he was trained and served in military occupational specialty (MOS) 91M (Hospital Food Service Specialist), and that on 1 February 1994, he was promoted to sergeant/E-5 (SGT/E-5), which was the highest rank he held while serving on active duty.

The applicant’s record also indicates that during his active duty tenure he earned the following awards: Army Service Ribbon; National Defense Service Medal; Army Good Conduct Medal (2^nd Award); Army Achievement Medal (2^nd Award); Expert Medical Badge; Overseas Service Ribbon; Noncommissioned Officer Professional Development Ribbon; Parachute Badge; Expert Marksmanship Badge (Hand Grenade); and Sharpshooter Marksmanship Badge (M-16 Rifle).

The applicant’s record documents no acts of valor of significant achievement; however, it does reveal 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 22 November 1995. The specific offense for which this NJP was imposed is not on file; however, it is clear from the available documentation that this NJP resulted in reduction to specialist four/E-4
(SP4/E-4).

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The separation packet containing the specific facts and circumstances pertaining to the applicant’s separation processing is not in the record. However, it is clear from the applicant’s own admission that he was afforded the right to counsel and that his case was considered by an administrative separation board prior to his being discharged. In addition, there is a properly constituted separation document (DD Form 214) on file that was issued to the applicant on the date of his separation, and that identifies the authority, reason, and characterization of his discharge.

The DD Form 214 confirms that on 21 February 1996, the applicant was discharged, under other than honorable conditions (UOTHC), under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct-commission of a serious offense. This document also verifies that at the time of his separation, he had completed 5 years, 1 months, and 7 days of his enlistment and a total of 9 years, 5 months, and 5 days of active military service.

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. An honorable or general, under honorable conditions discharge may be issued; however, the issuance of a discharge under other than honorable conditions is normally considered appropriate.

On 19 October 1998, the Army Discharge Review Board (ADRB) reviewed the applicant’s case, and it determined that the quality of the applicant’s overall record of service was sufficiently mitigating to warrant an upgrade of his UOTHC discharge to a GD. However, the ADRB concluded that the authority and reason for his discharge was proper and equitable and it voted not to change it.

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 his overall record of service warrants a upgrade of his discharge to fully honorable and a change to the authority and narrative reason for his separation. However, the Board finds an insufficient evidentiary basis to support the requested relief.

2. The applicant’s record is void of a separation packet containing the specific facts and circumstances concerning the events that led to his discharge from the Army. However, by his own admission, he was afforded the right to counsel and his case considered by an administrative separation board.
3. Further, the record does include a properly constituted DD Form 214, which was issued to the applicant on the date of his discharge. This document identifies the reason and characterization of the discharge, and the Board presumed government regularity in the discharge process.

4. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Board concludes a change to the authority and reason for the applicant’s discharge is not warranted.

5. The Board concurs with the ADRB decision to upgrade the applicant’s discharge to a GD, based on his overall record of service. However, it finds that his misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge. Therefore, the Board concludes that the applicant’s overall record of service is not sufficiently meritorious to warrant an upgrade of his discharge beyond the GD already granted by the ADRB.

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 this 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

__AAO__ __RWA__ __KYF__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001066144
SUFFIX
RECON
DATE BOARDED	2002/04/04
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1996/02/21
DISCHARGE AUTHORITY	AR 635-200 C14
DISCHARGE REASON	Misconduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.