MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            28 October 1998                  
	DOCKET NUMBER:   AC98-09939

	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. Loren G. Harrell		Director	
	Ms. Judy L. Blanchard		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis W. Barbee, Jr.		Member	
	Mr. Raymond V. O’Connor, Jr.		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)

APPLICANT REQUESTS:  In effect, that his general discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he wants an upgrade of his discharge because he would like to go to college.  He further states, that he was treated  unfairly and railroaded out of the military; that he would have loved to have stayed in the military, but now he is a diabetic and can no longer serve his country.    

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

On 11 February 1986, he enlisted in the Regular Army for 3 years.  He completed the required training and was awarded military occupational specialty 11B10 (Infantryman).  On 14 June 1988, the applicant extended his enlistment for a period of 7 months.  On 23 September 1988, he again extended his enlistment for a period 16 months.  The highest grade he achieved was pay grade E-6. 

On 29 October 1990, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order by wrongfully making phone calls to a fellow soldier’s wife.  His imposed punishment was a Letter Of Reprimand (LOR), a forfeiture of $266.00 pay, 14 days restriction and extra duty.

On 7 February 1991, the applicant accepted an NJP, under the provisions of Article 15, UCMJ, for disobeying a lawful order by wrongfully having personal   contacting with the same married woman, for wrongfully having sexual intercourse with the married woman for committing sodomy with the same married woman, for assaulting the woman and for communicating a threat.  
His imposed punishment was a reduction to pay grade E-4, a forfeiture of $500.00 pay per month for 2 months, 45 days restriction, 45 days extra duty and a LOR.

On 6 March 1991, the applicant accepted another NJP, under the provisions of Article 15, UCMJ, for breaking restriction.  His imposed punishment was a reduction to pay grade E-3.

A mental and a physical status evaluation found the applicant qualified for separation.  He was considered mentally and physically competent to participate in board proceedings. 

On 27 February 1991, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance (expressed apathetic attitude toward military discipline), with a general discharge.  The commander’s recommendation was based on action which indicated that the applicant could not be rehabilitated for productive military service.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance, and representation before a board of officers.

The appropriate authority approved the recommendation and directed the issuance of a general discharge.  On 26 March 1991, the applicant was discharged in pay grade E-3 under the provisions of Army Regulations 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He had completed 5 years, 1 month and 16 days of creditable active service.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. 

On 6 August 1998, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 the aforementioned requirement.

2.  The applicant states that he was railroaded out of that military.  There is no evidence in his military record in support of his allegation.  His military record shows that he was properly counseled and given every opportunity to make an adjust to his behavior.

3.  Therefore, the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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

JHL___  CWB_____  RVO_____  DENY APPLICATION

						Loren G. Harrell
						Director