MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 August 2003
         DOCKET NUMBER: AR2002079157

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		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 discharge be upgraded to honorable and that he be reinstated.

APPLICANT STATES: In effect, that he has provided the Board with all of the information needed to make an informed decision concerning upgrading his discharge to honorable. He states that he has shown the Board that his unit was biased and forced him out of the military. He states that he began to experience difficulties after he identified a racist in his unit and reported him to his congressman.

In support of his application, he submits a 3-page attachment further detailing his contentions and supporting documentation that he submitted to the Army Discharge Review Board (ADRB).

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

On 31 August 1979, the applicant enlisted in the United States Army Reserve (USAR) Delayed Entry Program for a period of 6 years. On 27 September 1979, he enlisted in the Regular Army for a period of 3 years. Following completion of all required military training, he was awarded military occupational specialty (MOS) 94B, Food Service Specialist, and was assigned to Korea.

On 6 February 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty. His punishment consisted of 7 days' restriction and forfeiture of $75.00 pay per month for 1 month (suspended for 60 days).

On/about 10 April 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for disobeying a lawful order. His punishment consisted of forfeiture of 7 days' pay, and 14 days of extra duty and restriction.

On 28 April 1980, the applicant's commander recommended that he be barred from reenlistment due to 8 counseling statements in less than 3 months and two NJPs. The applicant declined to submit a statement in his own behalf. On 1 May 1980, the Bar to Reenlistment was approved.

On 31 July 1980, the applicant accepted NJP for departing his appointed place of duty without authority, for failing to go at the prescribed time to his appointed place of duty, and for disobeying a lawful order of a noncommissioned officer (NCO). His punishment consisted of forfeiture of $106.00 pay per month for 1 month and 14 days' restriction.

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On 20 February 1981, the applicant was assigned to Fort Ord, California. On 19 November 1981, he was promoted to specialist (SPC/E-4).

On 2 July 1982, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of reduction to the grade of private first class (PFC/E-3), forfeiture of $150.00 pay per month for 1 month (suspended until 25 September 1982), and 7 days' correctional custody (suspended until 25 September 1982).

On 21 September 1982, a request to hold the applicant beyond his expiration of term of service (ETS) of 26 September 1982 was telephonically coordinated between the appropriate authorities. The request was made because the applicant was flagged under the provisions of Army Regulation 600-31 and was awaiting trial by court-martial scheduled for 14 October 1982. On 5 October this request was put in writing.

On 20 October 1982, the applicant was honorably released from active duty and transferred to the USAR. He was credited with 3 years and 24 days of creditable military service.

On 25 May 1983, the applicant reenlisted for a troop program unit in the USAR Ready Reserve and served honorably until he was discharged on 7 October 1986.

On 22 July 1998, the applicant enlisted in the Regular Army.

On 10 October 2000, the applicant accepted NJP for three specifications of disobeying lawful orders from two NCOs and two specifications of being disrespectful in language and deportment toward two NCOs. His punishment consisted of reduction to PFC/E-3 (suspended, to be automatically vacated if not remitted by 1 January 2001), forfeiture of $371.00 pay per month for 1 month (suspended, to be automatically vacated if not remitted by 1 January 2001), and 14 days’ restriction and extra duty.

On 24 July 2001, the unit commander notified the applicant of his intention to initiate separation action under the provisions of paragraph 14-12b, Army Regulation 635-200, for a pattern of misconduct with an under other than honorable conditions (UOTHC) discharge. The unit commander indicated that the reasons for his proposed action were the applicant’s violation of the 2nd Infantry Division Warrior Pass policy; failure to follow orders; chronic indebtedness; lying to an NCO; and incidents of disrespect to NCOs. He was advised of his rights and requested appearance before an administrative separation board.

On 11 September 2001, the applicant and his counsel appeared before an administrative separation board. On 11 October 2001, the administrative separation board found that separation was warranted and that the applicant was not desirable for further retention in the Army. The separation board recommended that the applicant be separated from active service with a UOTHC discharge. However, they recommended that the applicant be given a 6-month probationary period to show successful rehabilitation before enlistment or obligated service expires, under the provisions of Army Regulation (AR) 635-200, paragraph 1-20.

On 7 November 2001, the separation authority disapproved retaining the applicant for 6 months and directed that he separated from the Army under the provisions of paragraph 14-12b, AR 635-200, for a pattern of misconduct, with a UOTHC discharge and reduction to the lowest enlisted grade.

On 21 November 2001, the applicant was discharged. He was credited with 3 years and 4 months of active military service on his current enlistment and a total of 6 years, 4 months, and 24 days active military service on all enlistments.

On 2 April 2002, the applicant applied to the ADRB for an upgrade of his discharge. On 12 August 2002, the applicant appeared before the ADRB. The ADRB rejected all of the applicant's issues of propriety, but upgraded the characterization of his service to general, under honorable conditions and restored his rank to SPC/E-4 as a matter of equity.

AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion, and absence without leave, and other acts or patterns of misconduct.

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 record of military service is replete with numerous examples of his inability and/or unwillingness to comply with rules, regulations, and orders. His administrative separation for misconduct was completely justified and was accomplished in compliance with applicable regulations. There is no indication of procedural errors that would tend to have jeopardized his rights.
3. The Board notes that the ADRB, as a matter of equity, upgraded the characterization of the applicant's discharge from UOTHC to general, under honorable conditions. However, the ADRB concluded that the applicant's "misconduct . . . diminished the quality of his service below that meriting a fully honorable [discharge]." This Board wholeheartedly concurs in that assessment.

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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__lls___ __clg___ __rjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079157
SUFFIX
RECON
DATE BOARDED	20030805
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	20011121
DISCHARGE AUTHORITY	AR 635-212. . . . .
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0300
2.
3.
4.
5.
6.