MEMORANDUM OF CONSIDERATION


         IN THE CASE OF: .
        


         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002070212

         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr. .		Member
Mr. William D. Powers		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, his reentry eligibility code be changed to RE-1 and the bar to reenlistment be removed from his records.

APPLICANT STATES: He wants to start a career in law enforcement. He reports that, on the evening of 10 June 1983, he sustained a head injury because his roommate and another soldier were fighting in the barracks. When the CQ (individual in charge of the quarters) ordered the applicant not to return to the barracks room but declined to do anything about the fighting, he decided to drive off-base to his girlfriend's house. He was arrested for driving under the influence (DUI) of alcohol and released to the custody of his platoon leader. The next morning he did not wake up because of the head injury but was charged with missing early formation.

A bar to reenlistment was initiated, but the proper procedures were not followed. He did not decline to make a statement in his own behalf. He wanted to explain the circumstances. The typed notation that he changed his mind was added after he had signed the form. The company commander was directed to inform the applicant of his rights by the battalion commander. This did not happen. He was never informed of his rights and was discouraged from seeking legal help.

A directive from the division commander required the company commander to change the separation action to misconduct. He could not believe that a soldier, such as himself, with an otherwise good record would be discharged for a first offense.

After these personnel actions started, the company commander wrote him two letters of appreciation praising his "attributes of an outstanding soldier" and "morale, attitude, self discipline and ability to adapt to harsh weather conditions."

He believes the requested relief should be granted because he had a good record of service. He was promoted rapidly and served overseas. He received two Battalion Certificates of Achievement and his company commander wrote the two letters of appreciation after the DUI.

The procedures in Army Regulation 635-200 were not followed in that there was no attempt at rehabilitation or counseling. The proper procedures for the bar to reenlistment were not followed. He was not advised of his rights to legal counsel or his right of appeal. An Army representative erroneously told him that no corrective procedure was available.

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He submits copies of several service records documents including the letters of appreciation, two certificates of achievement, a 22 August 1983 approval of a 5 August 1983 request to impose a bar to reenlistment and a DA Form 268 (Report for Suspension of Favorable Personnel Actions) interim report dated 22 November 1983. It indicates that the action was originally imposed on 2 September 1983 and that separation action had been changed from chapter 13 [unsatisfactory performance] to chapter 14 [misconduct].

In the 19 years since the discharge, he has had no adverse encounters with the law, he has maintained an exceptional employment history, started a family and is an active supporter of his church.

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

He enlisted in the Regular Army and entered active duty on 1 June 1981. He completed training as a multi-channel communications operator and was posted to Germany.

A 30 January 1982 medical record entry shows that the applicant was hospitalized in restraints following an altercation with his roommates. He admitted to having "a few beers." While in the hospital, he made threats of causing serious injury to his roommates.

He was advanced to pay grade E-4 on 1 October 1982. In March 1983 he returned from Germany and was stationed at Fort Stewart, Georgia.

At 0220 hours on 24 June 1983, city police in Hinesville, Georgia arrested the applicant for DUI. The Georgia Department of Investigation laboratory reported a blood alcohol content (BAC) level of .13 grams percent. On 11 July 1983, the applicant was counseled for missing formation. A 24 June 1983 counseling statement praised the applicant's job performance and knowledge. On 13 July 1983, the applicant pled no contest to the DUI charge and was fined $350.00

On 26 July 1983, he was enrolled in the Army Drug and Alcohol Abuse Prevention and Control Program (ADAPCP) due to a DUI offense.

A bar to reenlistment was initiated based upon the 13 July 1983 conviction for DUI. A 22 August 1983 endorsement from the battalion commander approved the bar to reenlistment and required the company commander to inform the applicant of how to go about the appeal process.

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At 0020 hours on 28 August the applicant was arrested for driving his 1982 Kawasaki motorcycle through, under or around an operating crossing gate or barrier and for DUI. A breath test indicated a BAC of 14 milliliters percent.

The 2 September 1983, interim DA Form 268, which the applicant submitted with his application, indicates that separation action had been changed from Army Regulation 635-200, Chapter 13 (unsatisfactory performance) to Chapter 14 (misconduct). The recommendation for separation for unsatisfactory behavior is not contained in the available records.

On 6 September 1983, the applicant appeared in state court and pled guilty to the 28 August 1983 DUI. He was sentenced to 12 months probation, fined $650.00 and ordered to participate in the county's Alcohol Level One Driver Improvement Program.

The report of a 12 September 1983 medical examination shows that the applicant was found to be qualified for separation with a physical profile of 111111. A 15 September mental status evaluation found his behavior was normal. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right.

The applicant was counseled about his repeated DUI offenses (10 June and 28 August 1983). The 23 September 1983 counseling statement notes that his driving privileges had been revoked, he had been restricted to the base and a bar to reenlistment had been approved based upon his first DUI.

On 17 November 1983, the company commander recommended separation for misconduct due to a pattern of misconduct and commission of a serious offense. He noted that the applicant had two DUIs in a two-month period. Waiver of further rehabilitation was recommended.

The applicant consulted with counsel and waived his right to have his case considered by and to appear before a board of officers. He indicated that statements in his own behalf were not being submitted and he requested representation by counsel. He also indicated that he understood the nature and consequences of the general discharge he might receive and that he could apply to the Army Discharge Review Board and the Army Board for Correction of Military Records to upgrade the discharge.

The battalion commander recommended approval of the separation and the separation authority directed that the applicant be separated with a general discharge under the provisions of Army Regulation 635-200 for commission of a serious offense. He also waived rehabilitation requirements and directed that a reentry eligibility code of RE-3 be issued.

On 14 December 1983, the applicant was separated with a general discharge. He had 2 years, 6 months and 23 days of creditable service and no lost time.

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, 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. A serious offense is one in which the circumstances warrant separation and a punitive discharge is authorized by the Uniform Code of Military Justice for the same or a closely related offense.

The Manual for Courts Martial, Table of Maximum Punishments shows that a dishonorable discharge is authorized for operation of a motor vehicle while drunk or in a reckless or wanton manner.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. There is no indication of procedural errors that would tend to jeopardize his rights. The character of the discharge is commensurate with the applicant's overall record of military service.

2. There is no available evidence to support the applicant's contentions. He was counseled about his behavior after the first DUI and referred to the ADAPCP for evaluation and rehabilitation. The bar to reenlistment was overcome by events when he was recommended for separation rendering the appeal process for the bar to reenlistment moot.

3. Furthermore, the misconduct that actually resulted in his separation was not a single offense but was repeated DUIs. Given those circumstances, this Board finds the general discharge quite lenient.

4. Since there appears to be no basis for removal or waiver of that disqualification which established the basis for the RE there is no basis for changing the RE code Itself.

5. His unsupported assertions about his post-service behavior and conduct are noted but they do not outweigh the egregious behavior that led to the discharge.

6. 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.

7. 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

_JNS____ __DPH__ __WDP__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070212
SUFFIX
RECON
DATE BOARDED	20020912
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19831214
DISCHARGE AUTHORITY	AR365-200, Ch 14 . . . . .
DISCHARGE REASON	A67.03
BOARD DECISION	DENY
REVIEW AUTHORITY	A90.00
ISSUES 1.	A92.21
2.
3.
4.
5.
6.