MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 9 May 2002
         DOCKET NUMBER: AR2002069470


         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. John N. Slone		Member
Mr. Terry L. Placek		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)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by upgrading his "dishonorable" (sic undesirable) discharge to an honorable discharge.

APPLICANT STATES: In effect, that the "Book" states that he should have been represented by counsel for a special court-martial and a dishonorable discharge is imposed by a court-martial. He contends that he was denied counsel and the court-martial was not identified in the Veterans Administration (VA) benefits manual. He also contends that prejudicial legal errors occurred in the discharge process. He claims that his record is in error or unjust due to the circumstances that prompted the administrative actions charged against him versus the character of discharge he received for these charges. He requests that the Board should find, in the interest of justice, to consider this application because the bar was placed on him illegally without a bad conduct discharge or dishonorable discharge from a general court-martial. In support of his application, he submits a portion of a VA benefits manual.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional documents prepared to reflect consideration by the Army Board for Correction of Military Record's (ABCMR) of Docket Number AC83-08003 on 3 August 1983 and of Docket Number AC9110463 on 20 November 1991.

The applicant’s contentions regarding his discharge are new arguments which will be considered by this Board.

The facts and circumstances pertaining to the applicant’s discharge proceedings are not present in his records. However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 1 April 1974 under the provisions of Chapter 13 of Army Regulation 635-200, for unfitness - frequent incidents of a discreditable nature with civil or military authorities and was issued an Undesirable Discharge Certificate. At the time of his discharge, he had 1 year, 5 months and 1 day of creditable service.

Records show that the applicant received five nonjudicial punishments during the period 12 March 1973 and 17 September 1973, for unlawfully striking a company area security guard; failing to go to his appointed place of duty; disobeying a lawful order; disobeying a lawful command; wrongfully communicating a threat to injure a specialist five; treating a staff sergeant with contempt by walking away from him while he was talking; and being disrespectful in language toward a sergeant.


Records also show that, the applicant's commander initiated a bar to reenlistment against him on 14 November 1973. On the DA Form 4126-R (Bar to Reenlistment Certificate), the commander cited as the basis for the bar to reenlistment as the applicant's three nonjudicial punishments received on 26 April 1973 (Violation of Article 86), 21 May 1973 (Violation of Article 91), and 17 September 1973 (Violation of Article 91). The applicant was furnished a copy of the Commanding Officer's Certificate to bar him from reenlistment, was counseled and advised of the basis for the bar, and elected not to submit a statement in his own behalf.

The bar to reenlistment was then forwarded to the battalion commander for review and recommendation. The battalion commander recommended that the bar to reenlistment be approved. On 21 December 1973, the bar to reenlistment was approved by the Special Court-Martial Convening Authority (SPCMA) and a copy was placed in the applicant's military personnel records.

Evidence of record shows that the applicant enlisted in the Army on 11 July 1980 for a period of 3 years. During his enlistment process, he indicated on his DD Form 1966 (Record of Military Processing-Armed Forces of the United States) that he had not previously served in the Armed Forces. As a result, he was released from the custody and control of the Army on 21 October 1981, for misconduct - fraudulent entry. His service was uncharacterized and no creditable service was awarded.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 13-5a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.

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.

Army Regulation 15-185 governs operations of the ABCMR. Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.
Army Regulation 601-280 governed bars to reenlistment at the time in question. Essentially, this regulation provided that a soldier could be barred from reenlisting based on specific incidents of substandard performance and that any commander in the soldier’s chain of command may initiate a bar to reenlistment. Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the soldier so he or she can submit a statement on his or her own behalf. Each member of the chain of command must then endorse the bar to reenlistment to the proper approval authority. The regulation required that the approval authority for a soldiers with less than 10 years' active Federal service at date of bar initiation must be personally approved by the first commander in the rank of lieutenant colonel or above in the soldier's chain of command, or the commander exercising Special Court Martial Convening Authority, whichever is in the most direct line to the soldier (unless this is the same commander who initiated the action). The personal signature of the approving or disapproving authority is required. The regulation also provided that the soldier may appeal the bar to reenlistment and that final approval of appeals will be at least one approval level higher than the original bar approval authority.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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 request for an upgrade of his "dishonorable" discharge to an honorable discharge. The Board also notes the applicant's statements regarding his representation by counsel for a special court-martial and that a dishonorable discharge is imposed by a court-martial. However, there is no evidence of record which shows the applicant was tried or convicted by a court-martial or that he received a "dishonorable" discharge. His DD Form 214 reflects he was discharged from active duty on 1 May 1974 with an undesirable discharge.

2. The Board considered the applicant's contention that he was denied counsel and that the discharge process was in error and unjust due to the administrative actions charged against him. However, the applicant has not presented any evidence that the discharge process was flawed, in error or unjust.

3. The Board further notes that the administrative separation action under the provisions of Chapter 13 of Army Regulation 635-200, for unfitness – frequent incidents of a discreditable nature with civil or military authorities are not in the applicant’s records. However, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

4. The Board also considered the applicant's contention that the bar to reenlistment imposed on him was illegal.

5. Evidence of record shows that the applicant's company commander imposed the bar to reenlistment on him based on three nonjudicial punishments. The Board noted that a copy of the bar to reenlistment was referred to the applicant and he was counseled and advised of the basis of the action. The applicant was afforded the opportunity to submit statements in his own behalf; however, he declined to do so. The Board also noted that the battalion commander recommended approval of the bar to reenlistment and then properly forwarded the certificate to the SPCMCA. As a result, the SPCMCA approved the bar to reenlistment and a copy was appropriately placed in the applicant's personnel records. There is no evidence, and the applicant has provided no evidence, which shows the bar to reenlistment was in error or was "illegal."

6. The applicant’s service did not then meet and does not now meet the standards of honorable service as defined in Army Regulation 635-200. Therefore, the characterization of the applicant’s discharge is appropriate considering all the facts of the case. There also is no apparent error, injustice, inequity, or change in policy or standards on which to base recharacterization of his discharge to honorable.

7. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

JL_______ TLP_____ JNS_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002069470
SUFFIX
RECON	AC83-08003/AC9110463
DATE BOARDED	20020509
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19740401
DISCHARGE AUTHORITY	Army Regulation 635-200
DISCHARGE REASON	Unfitness-frequent incidents of a discreditable nature with civil or military authorities
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.