RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 March 2004
      DOCKET NUMBER:   AR2003087903


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Robert J. McGowan             |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Eric N. Anderson              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his General Discharge (GD) be upgraded to
an Honorable Discharge (HD).

2.  The applicant states, in effect, that he was the target of racism and
animus by his chain of command.

3.  The applicant provides:

      a.  A 10-page continuation to his DD Form 149 (Application for
Correction of Military Record).

      b.  A corrected copy of Orders 045-006, Headquarters, US Army Europe
(USAREUR), dated 14 February 2000.

      c.  A copy of his DD Form 214 (Certificate of Release or Discharge
From Active Duty) for the period 20 September 1998 to 23 February 2000.

      d.  Copies of DA Forms 2823 (Sworn Statement) dated 1125 hours,
9 December 1999; 0849 hours, 9 December 1999; 1415 hours, 9 December 1999;
0903 hours, 10 December 1999; 2000 hours, 12 December 1999; 0915 hours, 15
December 1999; 1600 hours, 20 December 1999; 1335 hours, 13 January 2000.

      e.  A copy of a memorandum, dated 10 December 1999, subject:
Recommendation for Nonjudicial Punishment.

      f.  A copy of an 18 January 2000 letter from applicant to a fellow
Soldier.

      g.  A copy of DA Form 4856 (General Counseling Form) dated 7 January
2000.

      h.  A copy of a memorandum, dated 12 January 2000, subject:  Mental
Status Report for [Applicant].

      i.  A copy of DA Form 2627 (Record of Proceedings Under Article 15,
UCMJ) dated 21 January 2000.

      j.  A copy of a 23 October 2002 letter of support.

      k.  A 5-page copy of purported transcripts of conversations between
the applicant and fellow Soldiers.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be upgraded to an HD
and that he be issued a new DD Form 214 that removes the reenlistment (RE)
code of RE-4 and "misconduct" as the narrative reason for separation.

2.  Counsel states, in effect, that the applicant was the target of racism
and personal animus by his chain of command.

3.  Counsel states that, on 9 December 1999, the applicant's commander
solicited several statements regarding alleged misconduct by the applicant.
 The applicant then went to the Inspector General's Office for assistance
and, in retaliation, his chain of command sent him for a mental status
evaluation.

4.  Counsel states that the applicant was administered nonjudicial
punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ),
for disrespect to a Warrant Officer One (WO1).  Although the applicant
contested the allegations, his commander found him guilty and imposed
punishment.  The applicant appealed to his battalion commander and his
appeal was denied.

5.  Counsel states the applicant was then processed for administrative
separation under the provisions of chapter 14, Army Regulation (AR) 635-200
for misconduct.  Counsel adds that the applicant's commander recommended
him for a GD when an under other than honorable conditions (UOTHC)
discharge is considered normal in order to deprive applicant the
opportunity to have his case heard by an impartial board of officers from
outside his direct chain of command.

6.  Counsel concludes by stating:

      a.  The applicant was "railroaded."  All of the evidence used against
him was "created" on or after December 1999.  He was given a GD in order to
circumvent Army policy and deny him review by an administrative discharge
board and legal review by the Staff Judge Advocate.

      b.  The applicant was denied the opportunity for a rehabilitative
transfer.

      c.  Evidence that became available after the applicant's discharge
(the 23 October 2002 letter of support), together with the transcripts of
conversations between the applicant and fellow Soldiers, proves that the
applicant was the victim of racism.  Department of the Army Inspector
General (DAIG) is investigating this allegation of racism and reprisal.

3.  Counsel provides the same information provided by the applicant

CONSIDERATION OF EVIDENCE:

1.  The record shows that the applicant enlisted in the Regular Army for 5
years on 29 September 1998, in pay grade E-4, military occupational
specialty (MOS) 97B (Counterintelligence Assistant), and the Student Loan
Repayment Program.

2.  Following completion of all required military training, the applicant
was awarded MOS 97B and ordered to Germany for his first duty assignment.
Prior to his transfer to Germany, he served a short period of duty with the
US Army Recruiting Battalion, Columbia, South Carolina and was awarded an
Army Achievement Medal in August 1999.  He arrived in Germany in August
1999.

3.  Shortly after his arrival in Germany, the applicant began receiving
negative counseling statements, to include:

      a.  1 October 1999 – disobeyed a direct order to utilize his chain of
command for routine administrative matters by going straight to the unit
First Sergeant concerning an issue with his Leave and Earning Statement.

      b.  4 October 1999 – reported 20 minutes late for physical training.

      c.  14 October 1999 – nearly missed a unit movement by showing up at
the last moment.

      d.  23 October 1999 – showed disrespect toward a Sergeant when told
to break down and clean a weapon.

      e.  9 November 1999 – disobeyed a direct order to attend training.

      f.  19 November 1999 – disobeyed a direct order to complete a form.
When later counseled, applicant accused the counselor of being racist and
"out to get him."

      g.  24 November 1999 – counseled for tardiness.

      h.  31 November 1999 – received a monthly counseling that was
positive, but also cited one instance of disrespect.

      i.  9 December 1999 – counseled for improper use of the chain of
command.

      j.  7 January 2000 – counseled for being out of uniform for physical
training.
4.  On an unknown date in January 2000, the applicant's commander referred
him to the US Army Medical Activity (MEDDAC), Heidelberg seeking a mental
status evaluation.  On 12 January 2000, the applicant was found to be
normal and to be psychiatrically cleared for any administrative action
deemed appropriate by his commander.

5.  On 21 January 2000, the applicant was offered NJP for being
disrespectful in language and deportment toward a Chief Warrant Two (CW2).
He accepted the NJP, requested a closed hearing, declined a spokesman to
speak on his behalf, and elected to personally present matters in defense,
mitigation and/or extenuation.  On 26 January 2000, he was reduced to pay
grade E-3, made to forfeit $273.00 pay per month for 1 month, and given 14
days of extra duty and restriction.  The NJP was reviewed by the Staff
Judge Advocate's Office and found to be legally sufficient.  The applicant
appealed his punished, but provided no additional matters.  On1 February
2000, the appeal was denied.

6.  On 2 February 2000, the applicant was advised that he was being
recommended for separation under the provisions of chapter 14, AR 635-200
for a pattern of misconduct.  He was advised of his rights, including his
right to consult with legal counsel, the right to obtain copies of all
documents to be considered by the separation authority, and the fact that
he did not have the right to a hearing before a board of officers based
upon his having less than 6 years of active/Reserve service.  The applicant
acknowledged his rights and chose to speak with legal counsel.

7.  On 9 February 2000, the applicant's commander forwarded the request to
separate the applicant for misconduct to the separation authority.  On
11 February 2000, the separation authority waived further rehabilitative
attempts and directed separation with a GD.

8.  The applicant was discharged on 23 February 2000 with a GD under the
provisions of chapter 14, AR 635-200, for misconduct.  He had a total of
1 year, 4 months, and 25 days of active Federal service and no lost time.
He was assigned an RE code of RE-3.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
a discharge upgrade.  The ADRB, after considering his case on 11 July 2001,
denied his request.

10.  The applicant's complaint before the DAIG was investigated and
unfounded. He was provided a copy of the result of that investigation
on/about 30 September 2003.

11.  AR 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 illegal drugs, convictions by
civil authorities and desertion or absence 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 UOTHC discharge is normally considered appropriate, but a GD
under honorable conditions or an HD may be granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record indicates that shortly after his arrival in
Germany he began experiencing minor disciplinary problems manifested by his
challenging of persons in authority over him, disrespect, disobedience,
tardiness, etc..

2.  The applicant's chain of command attempted to deal with the applicant's
poor attitude and behavioral problems through counseling and nonjudicial
actions.  These efforts were to no avail.

3.  In preparation for his administrative separation, the applicant's chain
of command appropriately referred him to the US Army MEDDAC for a mental
status evaluation.  That evaluation, performed by a psychiatrist, cleared
the applicant for administrative separation action.

4.  The applicant’s discharge proceedings were conducted in accordance with
applicable law and regulations.  The separation authority had the option of
giving the applicant an HD, GD, or UOTHC discharge.  Based upon the nature
of the applicant's misconduct and his overall record of military service,
the character of the discharge is deemed appropriate.

5.  The applicant was not denied a board of officer hearing based upon the
characterization of his service; as a Soldier with less than 6 years of
combined active/Reserve service, he was not entitled to a hearing.

6.  The applicant did not receive an RE-4 code; he received an RE-3 code.
The RE-3 code is appropriate to the applicant's narrative reason for
separation.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__kan___  __klw___  __ena___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                 Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003087903                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040304                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20000223                                |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |