MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2002067570

         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. Raymond V. O’Connor		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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: In effect, that his discharge should be upgraded because nobody gets discharged from the military for just speeding. He also contends that his character of service has always been outstanding.

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

The applicant enlisted on 4 May 1995 for a period of 3 years. He served as an armor crewman in Germany from 30 August 1995 to 29 August 1998. He was honorably discharged on 14 January 1998 and reenlisted on 15 January 1998 for a period of 3 years. The applicant was promoted to sergeant on 10 July 1998.

On 5 June 2000, the applicant was arrested and charged with fleeing or attempting to elude a law enforcement officer; damaging property of the Miami Dade County Police Department (broke window in police vehicle); and resisting an officer with violence. The applicant was confined by civilian authorities from
6 June 2000 to 19 August 2000.

There is no evidence of the disposition of the applicant’s civil charges.

On 11 December 2000, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense). The unit commander recommended separation with a general discharge and cited that the applicant absented himself from his authorized place of duty, that he was arrested by the State of Florida, County of Miami-Dade, and charged with fleeing or attempting to elude a law enforcement officer, damaging property of the Police Department and resisting an officer with violence.

On 16 December 2000, the applicant consulted with counsel. He waived representation by counsel, acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued and elected to make a statement on his own behalf. In summary, the applicant states that he was charged with several offenses; however, all charges were dismissed. He states that he was held for 78 days pending trial, that he was not allowed to contact his unit but the local police did and he was still charged with being absent without leave (AWOL). He contends that he is not requesting retention because he is tired and frustrated with the command in the way his situation was handled but he would like his discharge upgraded to honorable. He goes on to state that he served over 5 years without any disciplinary problems, that he was mistakenly arrested by civil authorities and now his military career is in shambles.

The unit commander initiated action to separate the applicant under the
provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for
misconduct (commission of a serious offense). He based his recommendation for separation on the applicant’s arrest by the State of Florida, County of Miami-Dade and unlawful, willful, and disrespectful actions and behavior for the County of Miami-Dade Police force and law enforcement officers.

The intermediate commander concurred with the recommendation for separation and recommended that the applicant receive a general discharge.

On 10 January 2001, 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
17 January 2001 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense). He had served 5 years, 3 months and 17 days of total active service with 75 days of lost time due to civilian confinement.

On 23 January 2002, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

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 Board considered the applicant’s contention that nobody gets discharged from the military for just speeding. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, which shows that he was discharged from the Army for speeding.

2. Evidence of record shows the applicant was arrested by the State of Florida, County of Miami-Dade, and charged with fleeing or attempting to elude a law enforcement officer; damaging property of the Miami Dade County Police Department (broke window in police vehicle); and resisting an officer with violence.

3. The Board noted the applicant’s contention that the civil charges against him were dismissed. However, the applicant has provided no evidence to support this contention.

4. Evidence of record also shows the applicant’s command determined that these offenses were serious offenses. As a result, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).

5. 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.

6. 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.

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

8. 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.

9. 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

RVO____ CLA____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067570
SUFFIX
RECON
DATE BOARDED	20020228
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	20010117
DISCHARGE AUTHORITY	AR 635-200 Chapter 14
DISCHARGE REASON	Misconduct (commission of a serious offense)
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.