MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 July 2002
         DOCKET NUMBER: AR2002071267

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Raymond J. Wagner		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 under honorable conditions discharge be recharacterized to an honorable discharge.

APPLICANT STATES: In effect, that his record is in error or unjust due to racism, unfair treatment of the case, and unfair representation during his discharge process. He states that he would like to pursue a career in law enforcement but the general discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct has "tainted" his civilian endeavors. He states that he has joined the 190th Military Police Company since his induction in the military in 1997. He further states that he has applied himself to a high military standard of excellence that has led him to have joined his fellow soldiers in the upper echelons of rank; however, he fears that his career is at a standstill, both military and civilian. He requests that the Board grant relief to assist him in achieving the goals of any future consideration for employment with any of the civil service agencies. In support of his application, he submits two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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

The applicant enlisted in the Regular Army on 5 September 1989 for a period of 3 years and 15 weeks. He successfully completed basic and advanced individual training and was assigned to Fort Ord, California, as a cannon crewmember. The applicant was discharged from active duty on 12 September 1990 and is currently serving the Army National Guard in the rank of specialist.

On 17 May 1990, the applicant received an administrative letter of reprimand for involvement in a verbal and physical altercation with another soldier at the National Training Center.

On 15 August 1990, the applicant received punishment under Article 15, Uniform Code of Military Justice (UCMJ), for unlawfully striking a private first class (PFC). His punishment consisted of reduction to the pay grade of private E-1; forfeiture of $362.00 pay per month for 2 months (suspended for 90 days to be automatically remitted if not vacated before 15 November 1990); restriction for a period of 45 days; and extra duty for a period of 45 days.

The applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, paragraph 14-12(c) for misconduct – commission of a serious offense and was advised of his rights. The commander cited as the basis for his proposed action as the applicant’s receipt of an Article 15, dated 15 August 1990; his adverse counseling in reference to chapter 14 elimination and poor duty performance; and his receipt of a letter of reprimand. The applicant acknowledged receipt of his proposed separation, consulted legal counsel and did not submit statements in his own behalf.

The separation authority approved the separation action, waived rehabilitation requirements, and directed that the applicant be issued a General Discharge Certificate. Accordingly, the applicant was discharged on 12 September 1990 under the provisions of Army Regulation 635-200, paragraph 14-12(c) for misconduct – commission of a serious offense. He had completed 1 year and 8 days of creditable service.

The applicant applied to the Army Discharge Review Board (ADRB) on 31 May 2000, for his character of service to be changed to honorable and the narrative reason to be changed to Secretarial Authority. The ADRB determined that the applicant's character of service was proper and equitable, and voted to deny relief. However, the ADRB voted to change the narrative reason on the applicant's DD Form 214 from "Misconduct – Commission Of A Serious Offense" to "Misconduct" based on current standards.

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 serious offense, conviction by civil authorities, desertion, or absences 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 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 contentions that his record is in error due to racism, unfair treatment, and unfair representation during the discharge process. However, the applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 14-12(c), for misconduct – commission of a serious offense, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2. Evidence of record shows the applicant consulted with legal counsel, was properly advised of his rights concerning the separation action, and declined to submit statements in his own behalf.

3. The Board also considered the applicant's contention that he would like to pursue a career in law enforcement, but the chapter 14 discharge has "tainted" his civilian endeavors. However, there is no evidence of record which indicates the applicant's discharge process was in error or unjust.

4. Records show the applicant received an Article 15 for striking a PFC and a letter of reprimand for his involvement in a verbal and physical altercation with another soldier. The Board has determined that the applicant’s overall military service did not meet the standards of acceptable conduct and performance of duty for Army personnel sufficient to warrant an honorable discharge. Therefore, there is no basis for upgrading his discharge to honorable.

5. 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.

6. 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

KAK____ AAO_____ RJW____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071267
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020702
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19900912
DISCHARGE AUTHORITY	AR635-200,chapter 14
DISCHARGE REASON	Misconduct
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.