MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 July 2002
         DOCKET NUMBER: AR2002071095

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. John T. Meixell		Member
Mr. Harry B. Oberg		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 under honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, he is seeking an upgrade in order to obtain a position with the local police force. He contends he was young and naïve about military life and its responsibilities. He states he has redeemed himself through his post service civilian employment as a security guard and store manager. He states he now understands the need for teamwork, apologizes for his lack of support of his superiors and for setting a bad example to his company. He asks to be forgiven and that the wording on his discharge be changed.

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

The applicant entered active duty on 9 September 1997 at age 21. He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman) and was assigned to Ft. Stewart, Georgia.

During the period of September 1998 through April 1999, the applicant received 15 negative counseling statements for poor attitude and appearance, failing physical fitness tests, failing to pay a just debt, missing a dental appointment, and being absent without leave (AWOL) by missing formation, being 5 hours late for duty and failing to report for duty.

In May 1999, the applicant's company commander proposed elimination of the applicant under Army Regulation 635-200, chapter 13, for unsatisfactory performance.

In concert with the proposed discharge, the applicant was afforded a physical examination and a mental status evaluation (MSE). The MSE conducted 25 May 1999, found the applicant's behavior normal. He was able to tell right from wrong and to adhere to the right. The physical examination found that he met the medical retention standards of Army Regulation 40-501 and was qualified for separation.

There is no indication as to why this separation action was not completed nor is there any specific documentation other than the preliminary notice to the applicant.

On 11 August 1999, the applicant's company commander again commenced discharge proceedings, this time under Army Regulation 635-200, chapter 14 for misconduct - minor disciplinary infractions. The commander noted the basis for discharge as the applicant's multiple counseling statements, his repeated failure of the physical fitness test, and his receipt of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, in January 1999 and February 1999. Copies of the two NJPs are not of record.

On 17 August 1999, after consultation with military counsel, the applicant acknowledged his rights and waived his right to counsel and to submit a statement on his own behalf. Although he was not entitled to an administrative separation board, as he had less than 6 years of service and was not being considered for discharge under other than honorable conditions, he indicated that he would waive those related rights as well.

The discharge authority accepted the discharge recommendation and directed that the applicant be discharged under Army Regulation 635-200, paragraph 14-12a. He directed that the applicant's service be characterized as general under honorable conditions, that he not be transferred to the Individual Ready Reserve, and that he be out-processed within five days.

The applicant was discharged on 6 October 1999. He had 2 years and 28 days of creditable service with no lost time.

On 5 April 2002, the Army Discharge Review Board denied his request to change his characterization and reason for discharge.

Army Regulation 635-200, at chapter 3 outlines the criteria for characterization of service. An honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty. Paragraph 3-7a(l), in pertinent part states: “A soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15.” “It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service.” Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Army Regulation 635-200, chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

Army Regulation 635-200, 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. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2. Notwithstanding the applicant's claim of youth and immaturity, he was 21 years old when he entered active duty. Furthermore, he demonstrated the capacity to serve by completion of initial training and approximately a year of service without a discreditable incident of record.

3. The Board notes the applicant’s statements about his post service employment and development of a sense of responsibility; however, these factors are not so meritorious as to outweigh the repeated misconduct that led to the applicant’s separation and are insufficient as the sole basis for granting relief.

4. 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.

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

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INDEX

CASE ID	AR2002071095
SUFFIX
RECON
DATE BOARDED	20020711
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9301
2.
3.
4.
5.
6.