MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            30 December 1998
	DOCKET NUMBER:   AC98-12402
                                              AR1998014188 

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Sherri V. Ward		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 discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES:  In effect, that his discharge was too harsh considering his offenses and overall record of service.

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

The applicant enlisted on 4 February 1975 for a period of 3 years, training as a hawk missile crewman, and assignment to Fort Bliss, Texas.  He successfully completed his basic training at Fort Ord, California and was transferred to Fort Bliss to attend his advanced individual training (AIT).  He successfully completed his AIT and was assigned as permanent party to Fort Bliss.

During the period 9 March 1976 to 7 June 1976 nonjudicial punishment (NJP) was imposed against the applicant on four occasions for failure to go to his place of duty.  After NJP was imposed against the applicant the second time in March 1976, the applicant was barred from reenlistment.

On 24 June 1976 NJP was imposed against the applicant for possession of marijuana.

On 29 June 1976 the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for misconduct.  He cited as the basis for his recommendation the applicant’s failure to respond to repeated counseling sessions (nine sessions cited), substandard performance and military bearing, immaturity, recalcitrant attitude, lack of desire to cope with military life, and resistance to authority.

The applicant underwent a mental status evaluation on 13 July 1976 and related to the examining official that he would not conform to retention standards and indicated that he would go AWOL if he were made to fulfill his service obligation. He was determined to have no psychiatric disorders and was cleared for separation.  The examining official also opined that the applicant’s behavior was such that he should be separated as soon as possible because his behavior was not conducive for positive influence on other soldiers.

After consulting with counsel the applicant elected to waive consideration of his case before a board of officers.  He also elected not to submit a statement in his own behalf.

The appropriate authority approved the recommendation on 23 July 1976 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 2 August 1976, under the provisions of Army Regulation 635-200, chapter 13, for misconduct.  He had served 1 year, 5 months, and 29 days of total active service.

On 11 July 1979 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he was young and immature at the time which contributed to his misconduct and asserted that his legal counsel promised him a discharge under honorable conditions.  The ADRB denied his application on 8 August 1979.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, and commission of a serious offense.  A discharge under other than honorable conditions was normally considered appropriate.

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.  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.

2.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

3.  The applicant has failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

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

__gp____  __sw ___  ___vbc __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12402/AR1998014188	
SUFFIX		
RECON	 	
DATE BOARDED	1998/12/30	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1976/08/02	
DISCHARGE AUTHORITY	AR635-200, ch. 13	
DISCHARGE REASON		
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.  110.00		
2.		
3.		
4.		
5.		
6.