MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2002066677

         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:

Ms. Joann Langston		Chairperson
Mr. Raymond J. Wagner		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: That his general discharge be upgraded to honorable.

APPLICANT STATES: That during his discharge processing he was not present to sign any forms regarding his separation or discharge.

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

The applicant enlisted on 22 July 1998 for a period of 3 years. He completed training as a cannon crewmember.

On 3 June 1999, nonjudicial punishment was imposed against the applicant for making a false official statement with intent to deceive. His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction and extra duty.
The Board notes that the applicant’s DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 3 June 1999, shows there is a continuation sheet attached to the DA Form 2627; however, this continuation sheet is not available for review.

On 22 July 1999, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for pattern of misconduct. The unit commander recommended that the applicant receive a general discharge and the reasons for his proposed action were altering public records, making false official statements to noncommissioned officers and failure to pay just debts. On 22 July 1999, the applicant acknowledged receipt of his notification of separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for pattern of misconduct.

On 1 September 1999, the applicant consulted with counsel. He requested representation by appointed military counsel, acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued and elected not to make a statement on his own behalf.

On 7 September 1999, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for pattern of misconduct. His specific reasons for separation were altering public records, making false official statements to noncommissioned officers and failure to pay just debts. The Board notes that this separation action also shows that the applicant received a bar to reenlistment on 18 May 1999 (no details available) and states that the applicant’s military records contain a Memorandum pertaining to personal check-cashing control and abuse prevention. However, this memorandum is not available for review.

The intermediate commander concurred with the recommendation for separation and the issuance of a general discharge.

On 27 September 1999, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

Accordingly, the applicant was discharged with a general discharge on 1 October 1999 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct). He had served 11 months and 20 days of total active service with 80 days lost.

Item 29 (Dates of Time Lost During This Period) on the applicant’s DD Form 214 shows the entry “UNDER 10 USC 972: 19990714-19991001.”

On 21 November 2001, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to honorable.

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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 applicant’s contention that during his discharge processing he was not present to sign any forms regarding his separation or discharge is not supported by the evidence of record. Evidence of record shows that the applicant received and authenticated a letter of notification of separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for pattern of misconduct, on 22 July 1999. The applicant’s Election of Rights statement, authenticated by the applicant on 1 September 1999, shows he was afforded the opportunity to consult with counsel and elected not to make a statement on his own behalf.

2. The Board reviewed the applicant’s record of service 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.

3. 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.

4. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5. 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.

6. 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

JL______ RJW____ RTD_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066677
SUFFIX
RECON
DATE BOARDED	20020226
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19991001
DISCHARGE AUTHORITY	AR 635-200 Chapter 14
DISCHARGE REASON	Misconduct (pattern of misconduct)
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.