MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        


         BOARD DATE: 23 May 2002
         DOCKET NUMBER: AR2002069260

         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. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Ms. Karen Y. Fletcher		Member
Mr. Lester Echols		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: Upgrade of his general discharge to an honorable discharge and access to the GI Bill education benefits.

APPLICANT STATES: He was a good soldier. He tried his best to fit in and found out that he wasn’t cut-out for the job. He really needs help to go to college.

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

That he enlisted in the Army Reserve and the Delayed Entry Program on
12 August 1994, as a private, pay grade E-1. He enlisted in the Regular Army on
28 July 1995, as a private, pay grade E-2, for a 4-year term of service to become an armor crewman. He enlisted for the Educational Incentives Programs, Montgomery GI Bill (MGIB) and Army College Fund (ACF). He signed a
DA Form 3286-66 (Statement of Understanding, United States Army Incentive Enlistment Program), indicating that he had read and understood in paragraph 5a(4), that if he failed to complete his term of enlistment and was discharged, he would lose entitlement to the MGIB and ACF, unless he had completed
30 months service of an enlistment if 3 years or more.

He completed basic and armor training at Fort Knox. He was promoted to private first class, pay grade E-3, on 14 August 1995. On 15 November 1995, he was assigned as a tank crewman to A Troop, 1/16^th Cavalry, at Fort Knox.

On 18 July 1996, the applicant was involved in a one-car rollover incident at Fort Knox. He was found to be driving without car insurance and with a suspended driver’s license. On 6 August 1996, the applicant’s post driving privileges were revoked for 5 years.

On 21 October 1996, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), by reduction to private E-2, 14 days extra duty, and suspended forfeiture of $229 for failure to go to his appointed place of duty, unit formation. On 5 November 1996, the suspended forfeiture was vacated and the forfeiture imposed due to the applicant driving on post on 23 October 1996, in violation of the order suspending his driving privileges.

On 6 November 1996, he was arrested by the Military Police for suspicion of larceny of $24 from a fellow soldier on 15-16 July 1996. The Staff Judge Advocate opined that there was sufficient evidence to title the applicant with the offense. The applicant was released to his commander pending a report of disciplinary action. There is no record of the disciplinary action. The record indicates that he told his commander that he was collecting a debt owed him by the fellow soldier.



On 26 November 1996, he was punished under Article 15, UCMJ, by suspended reduction to private E-1 and forfeiture of $204, and extra duty for 14 days. The specific reason for the Article 15 is not in the file but was related to violating suspended driving privileges.

On 22 December 1996, the commander was notified by the Army and Air Force Exchange System (AAFES) that the applicant was delinquent on payments to AAFES and that his Delayed Payment Plan and check cashing privileges were suspended. The applicant filed for Chapter 7 bankruptcy.

On 15 January 1997, he was punished under Article 15, UCMJ, by reduction to private E-1, 14 days extra duty, and forfeiture of $204 for communicating a threat to a civilian, placing a false alarm call on 911, and under age drinking of an alcoholic beverage.

Between December 1995 and January 1997, he also received counseling statements for assault on a soldier’s wife, sleeping instead of being on duty, sleeping on duty, 13 times for failure to be at the appointed place of duty or at the appointed time, missing 22 items of uniform and equipment, loss of government property, poor appearance, poor performance of duty, failure to obey orders, failure to wear protective gear, and disobeying the direct order of a superior.

On 14 March 1997, the applicant was notified by his commander of his intent to separate the applicant for a pattern of misconduct under paragraph 14-12b, Army Regulation 635-200. On 18 March 1997, he was advised of his rights by a Judge Advocate officer. The applicant elected not to submit a statement on his own behalf. He did request legal counsel and representation. He was given a physical and mental evaluation. He was found to be mentally normal and responsible. On 19 March 1997, the commander recommended that the applicant be separated for a pattern of misconduct and that he receive a general, under honorable conditions, discharge. The recommendation was approved by the separation authority on 20 March 1997. The applicant was so discharged from the Army on 27 March 1997 as a private, pay grade E-1, with 1 year and
8 months (20 months) active service.

On 20 February 2002, the Army Discharge Review Board (ADRB) considered the applicant’s request for a discharge upgrade. After reviewing his military record, the ADRB denied the request finding that his general, under honorable conditions, discharge was proper and equitable under the circumstances.

Army Regulation 635-200 (Enlisted Personnel) 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. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is 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. At enlistment, the applicant signed a DA Form 3286-66 (Statement of Understanding, United States Army Incentive Enlistment Program), indicating that he had read and understood in paragraph 5a(4), that if he failed to complete his term of enlistment and was discharged, he would lose entitlement to the MGIB and ACF, unless he had completed 30 months service of an enlistment if
3 years or more. He completed only 20 months of active service and is therefore not entitled to any MGIB benefits.

2. Based on his record of misconduct, the applicant was correctly and justly separated for a pattern of misconduct with a general, under honorable conditions, discharge. His separation processing was properly administered. He was provided counsel and advised of his rights. There is no basis for upgrading his discharge to honorable.

3. 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

__mm___ __kf___ ___le_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069260
SUFFIX
RECON
DATE BOARDED	20020523
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19970327
DISCHARGE AUTHORITY	AR 635-20, para 14-12b
DISCHARGE REASON	Pattern of Misconduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110 – Discharge Documents
2.
3.
4.
5.
6.