MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            16 June 1999
	DOCKET NUMBER:    AR1999020239

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 be upgraded to honorable.

APPLICANT STATES:  In effect, that he assumed that nonjudicial punishment (NJP) would be imposed, instead of a special court-martial and a dishonorable discharge.  He also states that he was unfairly treated due to his race and that his discharge was wrong and unjust.

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

The applicant entered active duty on 22 September 1975 as a light weapons infantryman.

He was convicted by a special court-martial on 1 June 1976 for wrongful possession of marijuana on 19 April 1976.  His sentence consisted of a forfeiture of pay, a reduction to the pay grade of E-1, and confinement at hard labor for 
45 days.

The applicant underwent a mental evaluation on 29 June 1976, which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.

The facts and circumstances pertaining to the applicant’s discharge are not present in the available records.  However, his DD Form 214 shows that on 7 July 1976, he was discharged under the provisions of Army Regulation 
635-200, chapter 13, for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  He was furnished an Undesirable Discharge Certificate.  He had a total of 8 months and 10 days of creditable and had a total of 36 days of lost time due to AWOL.

The applicant applied to the Army Discharge Review Board (ADRB) on 9 December 1998.  However, that board was precluded from accepting his application due to its statute of limitations (15 years).  This Board accepted his application (DD Form 149, dated 9 December 1998).

Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness 
(frequent incidents of a discreditable nature with civil or military authorities).
When separation for unfitness was warranted an undesirable discharge was issued by the separation authority.

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 the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

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

3.  There is no evidence of racial discrimination or prejudice either before, or incident to, the altercation which gave rise to the applicant’s offense.

4.  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.

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

JMA____  MHM____  ALR_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020239	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990616	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19760707	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 191		
2.		
3.		
4.		
5.		
6.