MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 January 2003
         DOCKET NUMBER: AR2002073821

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Jennifer L. Prater		Member
Ms. Mae M. Bullock		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: In effect, that he be promoted to master sergeant/E-8 (MSG/E-8); that his under other than honorable conditions (UOTHC) discharge be removed; that his last two Noncommissioned Officer Evaluation Reports (NCOERs) be removed from his Official Military Personnel File (OMPF); that he be reinstated on active duty and receive back pay from June 2000; and that all benefits and privileges he lost be restored.

APPLICANT STATES: In the enclosed self-authored statement, in effect, that he had ineffective legal counsel during his separation appeal process; that members of his chain of command ignored the rehabilitation instructions of his court-martial judge and refused to entertain or forward his request for transfer; that an Administrative Separation Board (ASB) to consider his separation under the provisions of chapter 14, Army Regulation 635-200, for misconduct, was quickly assembled and convened within 30 days in order to expedite his discharge, which he claims was double jeopardy. The applicant also contends that his case was unduly influenced by his battalion commander and that his battalion executive officer impeded his pay, which caused him to experience more financial problems.

The applicant also claims that his last two NCOERs were falsified and he was rated for performance in a position held by another noncommissioned officer (NCO). Further, he was unfairly charged with being absent without leave (AWOL) at a time that he had 69 days of accrued leave, and the merits of this AWOL charge was questioned by his trial judge, and by the members of his ASB. He claims that he was cleared of most of the AWOL charges; however, they were still used in his separation processing action. He also states that he was reprimanded for driving under the influence (DUI) although he was never formally charged with this offense.

Finally, the applicant asserts that he was discharged with 18 years and 9 months of service, and was not allowed to be present at the Department of the Army (DA) board that directed his discharge. He claims that his trial defense counsel said he would provide an in-depth account and evidence showing why the case should never have gotten to DA, but actually sent nothing. He further comments that his Qualitative Management Program (QMP) options allowed him to be retained until retirement because he had completed over 17 years and 9 months at the time he was notified. However, these options were not presented to the DA approval authority on his discharge and he was never given that option. In support of his application, he provides the enclosed self-authored statement that contains his entire argument in regard to this appeal.

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

He served on active duty in the Regular Army from 19 October 1981 through
23 June 2000. He was trained and served in the following military occupational specialties (MOS): 31C (Radio Operator/Maintainer); 00E (Recruiter/Retention NCO); and 31W (Muti-Switch Equipment Communications Chief). His record also confirms that the highest rank he attained while serving on active duty was sergeant first class/E-7 (SFC/E-7).

The last two NCOERs on file in the applicant’s OMPF were a change of rater report for the period February through December 1998, and an annual report for the period January through December 1999. In both these reports, the applicant was evaluated as a System Switching Supervisor in a Signal Support Company of the 3^rd Infantry Division, Fort Stewart, Georgia. The applicant signed the reports acknowledging that he had seen the reports completed through Part V, and that he was aware of the appeals process. The record contains no evidence that the applicant ever appealed either report or that he raised any issue in regard to his duty position at the time either of the reports in question were rendered. Both reports were accepted for filing in the OMPF by HQDA and were accordingly officially entered in his record.

The applicant’s disciplinary history includes several indebtedness related offenses that include deposit account fraud, writing bad checks, and failure to pay legitimate accounts during the period between July and September 1997. In addition, warrants for his arrest were issued by officials of Liberty County, Georgia, on 6 separate occasions between 13 and 21 May 1997, and he was reported AWOL on two separate occasions in June 1997.

On 18 March 1998, the applicant was given a Memorandum of Reprimand (MOR) by the Commanding General (CG), Headquarters, Fort Stewart, Georgia. The MOR was based on the applicant being apprehended by military police and being cited for drunken driving and driving without a driver’s license.

On 29 March 1998, the applicant submitted a rebuttal to the MOR, which indicated that the Driving Under the Influence (DUI) he received was inconsistent with anything that appeared in his record in his over 16 years of military service at the time. He further stated that he had experienced many adverse situations in the preceding 6 months, which he did not submit as a excuse for his making the poor decision to drink and drive, but which he believed were factors in his being out on that early morning of the incident. On 16 April 1998, the CG, Fort Stewart, after considering the applicant’s rebuttal, directed the MOR be filed in his OMPF.

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On 10 May 1999, the applicant received a MOR from battalion commander, for being apprehended based on a warrant for his arrest issued by civil authorities for writing worthless checks. On 20 May 1999, the applicant acknowledged receipt of the MOR and indicated that he would submit a statement in his own behalf at the conclusion of reading of the MOR from his battalion commander.
However, at the conclusion of the reading of the MOR to the applicant, his company commander indicated that the applicant failed to provide the statement in his own behalf within the allotted time. On 10 June 1999, the CG, Headquarters, Fort Stewart, Georgia, directed that the MOR be filed in the applicant’s OMPF.

On 13 August 1999, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct. The unit commander cited the applicant’s history of indebtedness, numerous bad checks, deposit account fraud, DUI and driving without a driver’s license offenses, failure to report, absences from his unit without authority, and other criminal violations and convictions as the basis for his taking the separation action.

The applicant acknowledged receipt of the commander’s notification of separation action and consulted with legal counsel. After being advised of the basis for the contemplated separation action by legal counsel, the applicant requested that his case be heard by an ASB.

On 28 January 2000, the ASB convened to consider the applicant’s case, with the applicant and his legal counsel present. The ASB determined that the applicant should be separated from the Army and receive an UOTHC discharge.

On 11 February 2000, the 3^rd Infantry Division Staff Judge Advocate (SJA) concluded that the findings and recommendation of the ASB, which in effect was that the applicant be discharged UOTHC, warranted approval. Based on this recommendation, the 3^rd Infantry Division Commanding General (CG) recommended approval of the findings and recommendations of the ASB and forwarded the separation packet to Headquarters, Department of the Army (HQDA) for final action.

On 11 February 2000, while his separation packet was being processed, a special court-martial (SPCM) found the applicant guilty of being AWOL during the following periods: from on or about 4 to on or about 5 August 1999; from on or about 14 to on or about 17 June 1999; from on or about 11 to on or about
22 June 1998; and from on or about 20 to on or about 26 May 1998. The resultant sentence included a reprimand and a forfeiture of $200. 00 per month for five months.

On 15 March 2000, The Adjutant General of the Army (TAG) recommended approval of the applicant’s separation under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct, and forwarded the separation packet to the Assistant Secretary of the Army, Manpower & Reserve Affairs (ASAM&RA) for final action.

On 21 April 2000, while his separation packet was pending approval at HQDA, the applicant was notified that the 2000 DA MSG/E-8 Promotion Board, after a comprehensive review of his records, had determined that he should be barred from reenlistment under the provisions of the Qualitative Management Program (QMP). This notification contained a list of documents that were used as the basis for the QMP action. In the applicant’s case, the document identified on this list was the 18 March 1998 MOR.

On 9 May 2000, the Chief, Military Personnel Law Branch, Administrative Law Division, Office of The Judge Advocate General, reviewed the applicant’s separation packet to include the matters submitted by the defense counsel, and concluded that the proceedings in the applicant’s case were legally sufficient to support an UOTHC discharge if approved by the ASAM&RA.

On 17 May 2000, the Director of Military Personnel Management, HQDA, recommended approval of the applicant’s separation with an UOTHC discharge and forwarded the case to the ASAM&RA for final approval. On 30 May 2000, the ASAM&RA approved the involuntary discharge of the applicant under the provisions of Army Regulation 635-200, chapter 14, with a service characterization of UOTHC. On 23 June 2000, the applicant was discharged accordingly after completing a total of 18 years, 8 months, and 5 days of creditable active military service.

There is no evidence to indicate that the applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade to his discharge, or that he appealed to the Enlisted Special Review Board (ESRB) requesting removal of the two NCOERs he now contests.

Army Regulation 623-205 prescribes policy on the preparation, submission, and appeal process for the NCOER. Paragraph 6-6 stipulates that a report accepted for filing in a NCOs record is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

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Paragraph 6-10 contains guidance on the burden of proof necessary for a successful appeal of an NCOER that has already been accepted for filing in the OMPF. It states, in pertinent part, that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

Army Regulation 635-200 provides the policy for the separation of enlisted personnel. Chapter 1, section III, contains guidance on the authority to order and accomplish separation. It states, in pertinent part, that commanders who are general court-martial convening authorities (GCMCA) and their superior commanders are authorized to order separation per this regulation. However, paragraph 1-19f stipulates that any soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged or released from active duty without approval of HQDA.

Paragraph 1-17 contains guidance on the restrictions on administrative separation and board hearings. It states that separation will not normally be based on incidents that had already been the subject of a judicial proceeding resulting in acquittal based on a finding of not guilty. However, it confirms that this restriction does not preclude a soldier convicted by a court-martial whose sentence does not include a punitive discharge from being processed for administrative separation under chapter 14 at any time after sentencing.
Conduct that was the subject of such a court-martial may be considered in determining retention or separation and, if appropriate, characterization of service.

Chapter 19 contains guidance on QMP separation processing provisions. It states, in pertinent part, that soldiers with a minimum of 17 years, 9 months of active Federal service at the time of notification of QMP selection, who choose not to appeal, will be retained to 20-year retirement eligibility upon request. However, this protection provision is applicable only to members separating under QMP provisions, and it is not applicable to personnel being processed for separation under misconduct provisions of chapter 14.

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 and carefully considered the issues and contentions of the applicant. However, after a careful review of all the facts in this case, it finds insufficient evidence of probable error or injustice that would support granting the relief requested.

2. By regulation, NCOERs that are filed in the OMPF are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. In order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

3. The evidence of record confirms the applicant never appealed to the ESRB for removal of the contested NCOERs at the time they were rendered or at any other time prior to applying to this Board. Further, the Board finds no clear and convincing evidence of record or independent evidence submitted by the applicant that satisfies the burden of proof necessary to overcome the regulatory presumption of regularity given reports that are already on file in the OMPF.

4. The separation regulation requires that the separation of individuals with over 18 years of service be approved at HQDA. It also states that a court-martial sentence that does not include a punitive discharge does not preclude an individual from being processed for administrative separation at any time after sentencing. Further, although the regulatory provisions of the QMP allows individuals with 17 years, 9 months of active Federal service at the time of notification of QMP selection to be retained to 20-year retirement eligibility upon request, this provision is not applicable to personnel being processed for separation under misconduct provisions of chapter 14.

5. The evidence of record confirms that the applicant’s separation was approved at HQDA based on his having over 18 years of service. Further, his misconduct separation processing was not restricted based on his court-martial conviction or his QMP selection. Thus, the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation processing.

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 In view of these facts, the Board finds the relief requested by the applicant is not warranted.

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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

__MKP__ __JLP _ __MMB __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073821
SUFFIX
RECON
DATE BOARDED	2003/01/14
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2000/06/23
DISCHARGE AUTHORITY	AR 635-200 C14
DISCHARGE REASON	Misconduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 281	126.0400
2. 360	144.0000
3.
4.
5.
6.