MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2002077806

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Jose A. Martinez		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 (GD) under honorable conditions be upgraded to a fully honorable discharge (HD).

APPLICANT STATES: In effect, that he was separated as a result of false allegations that he was unable to conform to military life; that he experienced the systematic degradation of character; and that he was separated as an act of vengeance and retaliation because he sought justice and brought attention to his unit after his platoon sergeant subjected him to a life-threatening situation. He contends that he was not an underachieving, mischievous soldier. In support of his application, he submits: a portion of his separation packet that shows a last minute change was made to his separation action after he had completed most of his out-processing; and an Army Discharge Review Boards (ADRB) case report showing that he was marginally denied an upgrade of his discharge by a 3 to 2 vote.

In a letter written to the ADRB, the applicant states that he sustained a heat injury while on guard duty in a field environment on 24 September 1996. He was ill, but his platoon sergeant accused him of faking and malingering, showed no concern for him, and refused to help him. He was eventually transported to the cantonment area by medical support personnel and given four bags of IV solution. He recovered, but he believes his platoon sergeant's attitude and behavior were improper.

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

Prior to the period of enlistment under review, he served 1 year, 3 months and 8 days of inactive service in the United States Army Reserve (USAR). He had also completed 4 months and 27 days of active military service while he was serving in the USAR.

On 2 February 1996, the applicant enlisted in the Regular Army for 3 years in military occupational specialty (MOS) 77F (Petroleum Supply Specialist). On 28 February 1996, he was assigned to Fort Stewart, Georgia, with duty in MOS 77F.

Between June 1996 and September 1997, the applicant was continuously counseled for numerous offenses, to include: failure to report to his designated place of duty on several occasions; failure to follow instructions; failure to follow sick call procedures; failure to report to his designated place of duty in a timely manner; being late for room inspection; having unauthorized personnel (a female) in the barracks without an appropriate escort; and failure to report to perform extra duty.

On 23 January 1997, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military (UCMJ), was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 27 November 1996. His punishment included reduction from pay grade E-3 to pay grade E-2 and forfeiture of $235.00 pay per month for 1 month (suspended until 22 July 1997). On 4 February 1997, the suspended portion of the applicant's punishment was vacated after he again failed to report to his designated place of duty at the time prescribed on 3 February 1997.

The applicant was absent without leave (AWOL) from his unit during the period 10-11 February 1997. There is no evidence available to indicate that he was ever punished for this offense.

On 2 July 1997, NJP was imposed against the applicant for failing to go to his place of duty on 30 June 1997. His punishment included the forfeiture of $210.00 pay per month for 1 month and reduction from pay grade E-2 to pay grade E-1, suspended until 2 January 1998. On 6 August 1997, the suspended portion of the applicant's punishment was vacated after he again failed to report to his designated place of duty at the time prescribed.

On 15 August 1997, NJP was again imposed against the applicant for failing to go to his place of duty. His punishment included the forfeiture of $210.00 pay per month for 1 month and 14 days of extra duty and restriction.

In August 1997, as part of the separation process, a medical examination and mental status evaluation determined the applicant was qualified for separation.

On 4 September 1997, the applicant's commander officially notified him that he was being recommended for discharge with a GD under the provisions of chapter 14, Army Regulation 635-200, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. The applicant was advised that the basis for this recommendation was the numerous times he failed to repair, his failure to obey orders, and his 1-day AWOL period. He was advised of the rights available to him.

On the same date, the applicant's unit commander requested that the requirement for further rehabilitative efforts be waived and that the applicant be immediately separated.

On 5 September 1997, the applicant consulted with legal counsel. He was advised of the nature of the contemplated separation action and the ramifications of a GD. He was told that he could expect to encounter substantial prejudice in civilian life if he were issued a GD. He was also advised of the rights available to him and that, with less than 6 years of active service, he was not entitled to an administrative separation hearing by a board of officers. The applicant declined to submit a statement in his own behalf.

On 8 September 1997, the intermediate commander recommended approval with a GD. On 9 September 1997, the approval authority waived further rehabilitative requirements and directed that the applicant be separated with a GD and that he not to be transferred to the Individual Ready Reserve.

On 18 September 1997, the applicant was separated under the provisions of chapter 14, Army Regulation 635-200 for misconduct with a GD. He had completed 1 year, 7 months and 15 days of active military service on the enlistment under review.

The applicant applied to the ADRB seeking a discharge upgrade. Based on a records review on 22 April 1999, the board voted unanimously to make "No Change" in both the applicant's reason for discharge and characterization of service.

On 22 March 2002, the applicant personally appeared before the ADRB and, at that hearing, all five members of the board voted for "No Change in the reason for separation. However, 2 members voted to change the characterization of his service, while 3 members voted to make no change. The applicant's request was subsequently denied.

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, to include abuse of alcohol, convictions by civil authorities and desertion or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a under other than honorable conditions discharge is normally considered appropriate, but a GD under honorable conditions or an HD may be granted.

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. 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.

2. The applicant's administrative separation does not indicate that any last minute changes were made to his separation action during out-processing. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights. He received exactly what he was told he would receive and the type of discharge was appropriate considering the facts of the case.

3. The Board found no evidence of arbitrary or capricious actions by any members of the applicant's chain of command. The applicant's service record clearly shows his performance and conduct were not in keeping with acceptable Army standards.

4. The ADRB's split vote denial of a discharge upgrade has no bearing on this Board. However, in view of the evidence, this Board agrees with the ultimate result of the ADRB hearing that the applicant was appropriately separated.

5. 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

__mhm___ __dsj___ __jam___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077806
SUFFIX
RECON
DATE BOARDED	20030520
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19970918
DISCHARGE AUTHORITY	AR635-200, Chap14
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6000
2.
3.
4.
5.
6.

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