MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 May 2002
         DOCKET NUMBER: AR2002066379

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Donald P. Hupman		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 discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he was unlawfully arrested and beaten before his trial. He contends that he was innocent and was told to plead guilty for less time. He also contends that he was sentenced to serve one year in confinement and he served seven months at Fort Leavenworth, Kansas. He states that all charges were dropped, that he was proven innocent and reinstated in the Army to retrain. After he finished retraining, he decided to resign from the Army and was given a general discharge.

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

The applicant enlisted on 9 August 1976 for a period of 3 years. He successfully completed basic combat training and advanced individual training and was transferred to Germany for duty as a field wireman.

On 17 May 1977, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order and being absent without leave (AWOL) from
10 May 1977 to 13 May 1977. His punishment consisted of a reduction to E-1 and 30 days of correctional custody.

On 15 August 1977, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty (three specifications). His punishment consisted of a forfeiture of pay and extra duty.

On 7 November 1977, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 18 November 1977, contrary to his plea of not guilty, the applicant was convicted by a general court-martial of committing an assault upon a female (broke her arm). He was sentenced to be confined for 1 year and to forfeit one-half pay per month for 12 months. On 17 January 1978, the convening authority approved only so much of the sentence as provides for confinement at hard labor for 12 months and forfeiture of $187 pay per month for 12 months. On 14 April 1978, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. On 7 July 1978, the unexecuted portion of the sentence to confinement was suspended until 8 November 1978.

The applicant was transferred to the Retraining Brigade for rehabilitation.

On 10 August 1978, nonjudicial punishment was imposed against the applicant for being AWOL from 5 August 1978 to 6 August 1978 and sleeping on his post. His punishment consisted of a forfeiture of pay (suspended for 30 days), restriction and extra duty. On 14 August 1978, the suspended forfeiture of pay was vacated.

On 15 September 1978, the applicant’s unit commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to frequent incidents of a discreditable nature. He cited the applicant’s general court-martial conviction, nonjudicial punishments, and the numerous discreditable incidents recorded by the applicant’s cadre at the Retraining Brigade.

On 15 September 1978, the intermediate commander concurred with the recommendation for separation.

On 20 September 1978, the suspended portion of the applicant’s general court-martial sentence to confinement was vacated.

On 21 September 1978, after consulting with counsel, the applicant requested consideration of his case by a board of officers.

On 30 October 1978, the applicant appeared before a board of officers to determine whether he should remain in the service or be administratively separated. The board of officers recommended that the applicant be eliminated from the service for misconduct with the issuance of a general discharge.

The applicant went AWOL on 1 November 1978 and returned to military control on 7 November 1978.

On 6 November 1978, the separation authority approved the board of officers recommendation and directed that the applicant be discharged from the service for misconduct due to frequent incidents of a discreditable nature with a general discharge.

Accordingly, the applicant was discharged on 29 November 1978 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to frequent incidents of a discreditable nature. He had served
1 year, 5 months and 4 days of total active service with 298 days lost due to AWOL and confinement.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed; or rehabilitation is impracticable or he is not amenable to rehabilitation measures; and an unfit medical condition is not the direct or substantial contributing cause of his misconduct. Members are subject to separation under the provisions of this section for the following patterns of misconduct: (1) frequent incidents of discreditable nature with civil or military authorities, (2) an established pattern for shirking, (3) an established pattern showing dishonorable failure to pay just debts, and (4) an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. A discharge under other than honorable conditions is normally appropriate for a soldier discharged for acts or patterns of misconduct. However, the discharge authority may direct an honorable or general discharge if such are merited by the soldier’s overall record.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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 considered the applicant’s contention that he was unlawfully arrested and beaten before his trial. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

2. The applicant’s contentions that all charges were dropped and he was proven innocent are not supported by the evidence of record. Evidence of record shows that contrary to the applicant’s plea of not guilty, he was convicted by a general court-martial of committing assault upon a female.

3. The Board considered the applicant’s contentions that he was reinstated in the Army to retrain and that after he finished retraining, he decided to resign from the Army and was given a general discharge. However, evidence of record shows that the applicant was transferred to the Retraining Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well trained soldier with improved attitude and motivation. The applicant’s command initiated separation proceedings following his failure to react constructively to the rehabilitation program. In accordance with a recommendation from a board of officers, the separation authority directed that the applicant be discharged with a general discharge under the provisions of Army Regulation 635-200 for misconduct.

4. 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.

5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6. The Board reviewed the applicant’s record of service which included one general court-martial conviction for assault upon a female, four nonjudicial punishments and 298 days lost and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

7. 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.

8. 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

MHM___ KAN_____ DPH_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066379
SUFFIX
RECON
DATE BOARDED	20020514
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19781129
DISCHARGE AUTHORITY	AR 635-200 Chapter 14
DISCHARGE REASON	Misconduct due to frequent incidents of a discreditable nature.
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.