MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 May 2003
         DOCKET NUMBER: AR2003089826

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		Member
Mr. Robert L. Duecaster		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) be upgraded to an Honorable Discharge (HD).

APPLICANT STATES: That he did not realize the ramifications of a GD or he would have appealed.

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

He enlisted in the Regular Army for 3 years on 27 December 1985. Aptitude testing upon induction revealed a General Technical (GT) score of 111. Upon completion of all required training, he was awarded military occupational specialty (MOS) 95B, Military Police, and assigned to Fort Stewart, Georgia, on/about 13 May 1986.

At Fort Stewart, the applicant demonstrated unsatisfactory conduct and efficiency. From the beginning of his assignment, he received negative counseling statements on DA Form 4856 (General Counseling Form) for his appearance, attitude, performance, military bearing, financial problems, and physical fitness. In September 1986, he cashed several checks for which he had insufficient funds. In October 1986, he was cited for being over his maximum allowable weight of 174 pounds and was placed in the unit's overweight program. Also in October 1986, he failed the Army Physical Fitness Test.

The applicant's records either contain copies of DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) or references to them. There is a reference to nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, having been administered in January 1987. On/about 8 April 1987, the applicant accepted NJP for violating a lawful general regulation (Army Regulation 190-11, Physical Security of Arms, Ammunition and Explosives) by storing a rifle in the barracks. On/about 14 April 1987, he again accepted NJP for an undisclosed offense. On 15 October 1987, he accepted NJP for failing to go at the time prescribed to his appointed place of duty.

On 2 December 1987, the applicant was offered NJP for failing to go on the previous day to his appointed place of duty at the time prescribed. He refused the NJP and demanded trial by court-martial. Court-martial charges were preferred against him and, on 11 and 22 January 1988, he was tried before a summary court-martial. Despite his plea of not guilty, he was found guilty of failure to repair. He appealed his conviction on 1 February 1988, stating that he was a mere 6 minutes late for formation; the appeal was denied and the conviction was approved.

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The applicant received a bar to reenlistment on 9 December 1987. The bar cited the applicant's NJP of 14 April 1987, his cashing of checks in September 1987 without having sufficient funds in his account to cover those checks, his overweight condition, and his Army Physical Fitness Test failure.

On 1 February 1988, the applicant was cited for being overweight. It is noted in the record that he was 68 inches tall and weighed 204 pounds; his maximum allowable weight was listed as 174 pounds.

On 29 January 1988, the applicant underwent a physical examination and was found qualified for separation. On 18 February 1988, he underwent a mental status evaluation and was cleared for administrative separation action. On 27 March 1988, he was notified that he was being processed for separation under the provisions of chapter 14, Army Regulation 635-200, for misconduct, and that he was being recommended for a GD. He acknowledged notification and consulted with legal counsel who explained the administrative separation process and the ramifications of receiving a GD. The applicant acknowledged that he understood his rights and the meaning of receiving a GD.

On 31 March 1988, the approving authority approved the applicant's separation for misconduct with a GD. The applicant was separated on 14 April 1988 with 2 years, 3 months, and 18 days of creditable active Federal service and no lost time.

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, and 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 discharge under other than honorable conditions is normally considered appropriate, but a GD or 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 was a substandard soldier with numerous disciplinary violations in his service record. The offense for which he was convicted by a summary court-martial was relatively minor in nature; however, he was offered, and refused, the opportunity to resolve the matter by NJP. Also, although minor in nature, it was a repeat of previous bad conduct for which he had already been sanctioned.

3. The applicant's contention that he did not understand the ramifications of a GD is not accepted by the Board. The applicant had a GT score of 111. The GT score rates a soldier's cognitive ability as compared to the general population, using a standardized scale with 100 as the median score. A score between 90 and 110, or the median plus or minus 10, indicates average intelligence. A score above 130 indicates exceptional intelligence and a score below 70 may indicate substandard intelligence. The applicant was capable of understanding his administrative separation proceedings and the explanation of his legal counsel as to the ramifications of a GD over an HD. He acknowledged as much by affixing his signature to a counseling form in March 1988.

4. The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

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

__sac___ __mdm___ __rld___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089826
SUFFIX
RECON
DATE BOARDED	20030508
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19880414
DISCHARGE AUTHORITY	AR 635-200 Chap 14
DISCHARGE REASON	A60.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0000
2.
3.
4.
5.
6.