MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  4 February 1999      
	DOCKET NUMBER:   AC98-11456
                                              AR1999016012

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		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:  That his undesirable discharge (UD) of 6 April
1973 be upgraded to a general discharge or an honorable discharge.

APPLICANT STATES:  In effect, that he is asking for forgiveness and requesting that his discharge be upgraded.  He stated that he was young at the time of his discharge; now he is wiser and he is trying to do the right thing.

EVIDENCE OF RECORD:  The applicant was born on 4 November 1952 and enlisted in the Regular Army for 3 years and Military Occupational Specialty 12B (Combat Engineer).  The highest grade he achieved was pay grade E-4.

Between November 1971 and April 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on three separate occasions.   On 13 December 1971, he accepted NJP for failure to go to his appointed place of duty at the prescribed time 
(5 December 1971).  His punishment included forfeiture of $72.00 pay, 10 days of extra duty and restriction. 

On 16 January 1972, he accepted NJP for stealing four packs of Kool cigarettes from the Post Exchange (4 December 1971), and for being AWOL from his unit 2-4 January 1972.  His punishment included reduction from pay grade E-2 to pay grade E-1, 10 days of extra duty and restriction.

On 29 December 1972, the applicant was convicted by a special court-martial for failure to obey a lawful general regulation; for possession of a switchblade knife and for wrongfully communicating a threat toward a noncommissioned officer. He was sentenced to reduction from pay grade E-4 to pay grade E-1, and confinement at hard labor for 60 days.

On 29 December 1973, he was confined in the US Army Confinement Facility, Mannheim, Germany.  He was placed in disciplinary segregation for being disrespectful to the guards.

On 9 February 1973, he was transferred to Fort Riley, Kansas to the US Army Retraining Brigade (USARB).  On 12 March 1973, he accepted a third NJP for gambling in the unit area.  His punishment included forfeiture of $67 pay and 
14 days restriction.  During the confinement period, his conduct and performance was substandard:  he had a negative attitude; he lacked motivation; he was recycled twice to different leadership teams, and he received two negative observation reports for refusing to go to training and for stating that he would not return to duty.  He was also pending trial by summary court-martial for alleged possession of marijuana.

The commander of the USARB notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  On 30 March 1973, the applicant acknowledged notification of the commander’s intent to separate him.  He consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to him.  He was not entitled to have his case considered by a board of officers.  He did not submit a statement in his own behalf. 

On 30 March 1973, the appropriate authority approved the separation recommendation and directed the issuance of a UD.  On 6 April 1973, the applicant was discharged under the provisions of AR 635-200, chapter 13, for unsatisfactory performance with a UD.  He had completed 1 year, 7 months and 12 days of creditable active service and he had 45 days lost time due to being in confinement.

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 1 May 1979, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.  The Board cited an improper separation, however, supported propriety in the separation action.  Further, the Board concluded that the record contains some administrative errors that were not considered prejudicial in view of the applicant’s frequent involvement in incidents of a discreditable nature.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 Board noted that the applicant met entrance qualification standards to include age.  The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

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

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 

________  ________  ________  DENY FORMAL HEARING

_JHL____  AAO_____  VBC_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11456/AR1999016012	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990204	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19730406	
DISCHARGE AUTHORITY	AR 635-200  	
DISCHARGE REASON	Unsatisfactory Performance	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	He was young at the time of his discharge.  Now he wants to do the right thing.	
2.		
3.		
4.		
5.		
6.