MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003087437

         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:

Mr. Arthur A. Omartian		Chairperson
Mr. Harry B. Oberg		Member
Mr. Thomas Lanyi		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 upgraded to an honorable discharge. He also requests to appear before the Board.

APPLICANT STATES: That during the majority of the period he was accused of "patterns of misconduct" he was attached to other units. He contends that he served honorably and has led an "upstanding" life before and after his military service. He claims that he did not deserve what he received. He states that his father and grandfather were military men and that this black mark on his family name is unwarranted and in the name of justice, should be removed. In support of his application, he submitted an award certificate for the Army Achievement Medal; a French Command School Diploma; two Certificates of Achievement; two Letters of Commendation; a Department of Veterans Affairs Rating Decision; and his Appeal to Bar to Reenlistment.

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

He enlisted in the Regular Army on 15 January 1985 and completed the required training. He was assigned to the 3rd Squadron, 11th Air Cavalry Regiment in Germany on 17 May 1985 as a radio telephone operator.

While in Germany, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ) for making a false official statement. His punishment consisted of reduction to the grade of E-2 (suspended for 90 days), forfeiture of $167.00, and performance of extra duties for 14 days and restriction for 14 days. On 8 June 1986, the suspended reduction was vacated after the applicant violated Article 91, UCMJ.

On 24 July 1986, the applicant underwent a mental status evaluation and a separation medical examination and was found fit for separation.

Records show that the commander of the 3rd Squadron, 11th Air Cavalry Regiment initiated a bar to reenlistment against the applicant on 2 August 1986. The commander cited as the basis for the bar to reenlistment as the applicant's Article 15, UCMJ he received for violation of Article 107 (False Official Statement) and Article 91 (Disrespect to an NCO). In addition, the commander indicated that the applicant had been counseled several times about his disregard for superiors and failure to follow orders. The commander further indicated that the applicant was chronically disobedient, only followed orders as he saw fit, and disobeyed orders as he pleased.

The applicant was convicted by a summary court-martial on 15 September 1986 of violating a lawful general regulation. He was sentenced to forfeiture of $350.00 pay per month for 1 month and restriction for 15 days. He was still assigned to the 3rd Squadron, 11th Air Cavalry Regiment in Germany at the time of his offense.

On 6 November 1986, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct. The commander cited as the basis for the proposed separation the applicant's disciplinary problem and that he had been counseled many times.

On 14 November 1986, the applicant acknowledged notification of the pending separation action, consulted with legal counsel, waived a hearing by a board of officers, and elected not to submit statements in his own behalf.

The separation authority approved discharge under the provisions of Army Regulation 635-200, chapter 14 and directed issuance of a General Discharge Certificate.

The applicant was discharged on 16 December 1986. He completed 1 year, 11 months, and 2 days of active military service.

On 17 June 1992, the Army Discharge Review Board determined that the applicant's discharge was proper and equitable and denied his request for an upgrade of his discharge.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR). Paragraph 2-11 of this regulation states that applicants do not have the right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.

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 Board notes the applicant's contention that he was attached to other units the majority of the period he was accused of "patterns of misconduct." However, records show he was assigned to the same unit the entire time he was cited for patterns of misconduct.

3. The Board also notes the applicant's contention that served honorably and has led an "upstanding" life before and after his military service. However, records show he received an Article 15, a Bar to Reenlistment, a summary
court-martial, and had been counseled several times during his military career. The Board has no evidence regarding the applicant's post-service conduct; in any case, such conduct would not be relevant to his character of service at the time he was separated.

4. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5. The applicant has provided no evidence of error or injustice which would warrant changing the characterization of his discharge from general to honorable. Therefore, the Board has determined that there is no basis for granting the applicant's request.

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

AAO_____ HBO____ TL______ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087437
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030828
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.