MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 June 2003
         DOCKET NUMBER: AR2002082552

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Jennifer L. Prater		Member
Mr. Paul M. Smith		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 be upgraded to fully honorable, and that his reentry (RE) code be changed to RE-1.

APPLICANT STATES: His discharge was based on one incident in 6 ½ years, he was only in the unit for around 6 months, and he acknowledges the wrongness of his actions. He adds that he has grown since then.

In support of his request, he submits a letter from his former first sergeant (1SG).  His former 1SG states that he did not perform to standard at the time of his discharge. However, his 1SG states that he believes the applicant has learned from his mistakes. His 1SG lists the applicant’s post-service accomplishments, and adds that at no time was the applicant ever involved in drugs or any other criminal activity.

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

He enlisted in the Regular Army on 26 June 1978. He was awarded the military occupational specialties (MOS’s) of administrative specialist and recruiter, and was promoted to pay grade E-5.

In an undated statement, a sergeant first class (SFC) stated that he had ordered the applicant to pick up weapons. The applicant told him that weapons pick up was no longer his responsibility because he was being transferred to another unit. When the SFC stated that it was, in fact, his responsibility until official notification arrived of his reassignment, the applicant went to see the Command Sergeant Major (CSM). When the applicant returned, the SFC again ordered him to pick up the weapons, to which the applicant replied “I’m not going to sign for any weapons.” The SFC for the third time ordered the applicant to pick up the weapons. The SFC ends his statement by saying that the applicant never picked up the weapons, as ordered.

In an undated statement, the applicant’s commander stated that when he asked the applicant why he disobeyed an order, the applicant stated that he was to be reassigned out of the unit at any time, so it wasn’t his responsibility to pick up weapons anymore. The applicant also stated that since he had never been awarded the MOS of supply clerk, it was not his responsibility to perform the duties of a supply sergeant. The applicant’s commander continued his statement, saying that he informed the applicant that as long as he was assigned to his unit, he would obey the officers and non-commissioned officers appointed





over him. He also told the applicant that he had come to his unit looking for a job, and accepted the job as supply sergeant knowing full well what that job entailed. The applicant’s commander then says the applicant told him that he refused to work as the supply sergeant, which was in direct violation of his orders.

On 22 August 1984, another SFC signed a statement concerning the applicant’s arrival in the unit. This SFC stated that the applicant had told the unit’s 1SG that he wanted to be transferred into the unit. The unit’s 1SG informed the applicant that the only non-ranger position he had was a supply sergeant. The applicant stated that he would accept any job he was assigned, and was accepted on that basis.

On 9 October 1984, the applicant refused nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful command and for disobeying a lawful order. The applicant demanded trial by court-martial.

On 17 October 1984, special court-martial charges were preferred against the applicant.

On 21 November 1984, the applicant requested discharge in lieu of trial by court-martial for the good of the service.

The applicant’s request was approved and he was issued a General Discharge Certificate on 4 January 1985.

On 18 January 1986, the applicant enlisted in the Army National Guard, and was discharged at the expiration of his term of service in pay grade E-3 on 16 May 1988.

On 27 July 1987, the Army Discharge Review Board denied the applicant’s request to upgrade his general discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for







the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant has not claimed that any errors were made in the processing of his discharge, nor were any errors noted by the Board.

2. The applicant has requested an upgrade of his discharge because his discharge was based on one event in a 6 ½ year military career. He also requests that his post-service accomplishments be taken into consideration in the Board’s deliberation on his request.

3. In this regard, the applicant is correct, that this is the only record of disciplinary problems contained in his records. He also has an impressive list of accomplishments after his discharge.

4. The nature of the applicant’s offense and the circumstances surrounding his discharge now must be weighed against these matters of mitigation. In this regard, the applicant blatantly refused repeated orders from both a senior noncommissioned officer and his commander. When offered a field grade NJP, the applicant demanded trial by court-martial. After consulting with counsel, the applicant requested discharge instead of taking the chance of being sentenced to confinement and a punitive discharge.

5. Disobeying orders constitutes willful misconduct, especially when the individual disobeying the order is a noncommissioned officer. Therefore, the applicant certainly deserved severe punishment. Also, the applicant’s own choices after he was offered NJP led to his discharge.

6. The applicant has already been afforded leniency by his command when he was given a general discharge instead of the normal under other than honorable discharge. The applicant has not submitted any evidence or argument which would lead the Board to believe that any further leniency is warranted in his case.






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

___jhl ___ ___jlp___ ____pms DENY APPLICATION

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

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INDEX

CASE ID	AR2002082552
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020603
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.