MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 March 1999                  
	DOCKET NUMBER:   AR1999020568

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		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 general discharge be upgraded to fully honorable, that his reenlistment (RE) code be changed to RE-1, and that he receive a corresponding separation program designator (SPD).

APPLICANT STATES:  That his conduct and efficiency ratings were generally good, he received several awards, his military offenses were only minor ones, he had personal problems with his family, he did not work in his military specialty, his commander abused authority, and he has been a good citizen since separation.

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

He enlisted and entered active duty on 28 April 1971.  While still in training he was punished for twice failing to stand fireguard duty at his barracks.  He completed training as an administrative specialist, which he enlisted for, and was assigned to Fort Ord, California.  In his first month of duty he was AWOL for 2 days and punished again under Article 15, UCMJ for absence from his place of duty.  In April 1972 he was punished under Article 15, UCMJ for failure to go to his place of duty.

On 30 May 1972 the applicant was convicted by summary court-martial of two specifications of breaking restriction.  The imposed punishment included reduction to E1.  On 22 June 1972, after returning from 3 days AWOL, he was attached for duty with the drug and alcohol center.  On 31 July 1972 he was convicted by special court-martial for the AWOL offense.  On 24 August 1972 he was convicted by summary court-martial of 6 days AWOL.  He was also arrested by civil authorities and confined for 2 days for issuing bad checks.

The applicant’s DA Form 20 (qualification record) shows that he was assigned duties in his military specialty at all times and that he was punished a total of six times under Article 15, UCMJ.  Additionally his conduct and efficiency ratings from April to October 1971 were excellent and from April 1972 to January 1973 they were rated unsatisfactory.

On 30 August the applicant was notified that he was being considered for elimination for unfitness.  He was advised of his rights and acknowledged receipt on 30 August 1972.  The board of officers met on 1 December 1972 and the applicant’s six article 15’s, three convictions by court-martial and four periods of AWOL were presented.  Additional evidence was presented that the applicant issued 19 bad checks with intent to defraud.  Also presented was his mental status examination that showed that he had no mental illness or disease.

The board found that the applicant may have been influenced by his drug use but felt that there were sufficient incidents of a discreditable nature to warrant his elimination for unfitness.  The board of officers recommended he be issued an undesirable discharge.

The separation authority, a major general, approved the board’s recommendation and directed separation with an undesirable discharge.  Effective 29 January the applicant was discharged under authority of Army Regulation 635-212 under other than honorable conditions.  He had 1 year, 8 months, and 13 days creditable service and 19 days lost time.  His RE code is shown as 3B with an SPD of 28B.  His authorized awards include the National Defense Service Medal and weapons qualification badges.

On 21 May 1974 the applicant appeared in person before the Army Discharge Review Board (ADRB).  The board voted to upgrade his discharge to under honorable conditions but left in place the reason and authority for separation.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.  The SPD of 28B corresponds to the reason for separation of unfitness, involved in frequent incidents of a discreditable nature with civil or military authorities.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified.  RE-3B indicates that a person had lost time during his last enlistment.

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’s disciplinary problems started very early in service and continued throughout his less than 2 years service.  Although he did volunteer for drug counseling there was no apparent change in his military record.
3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  While the Board is empathetic, the applicant's personal problems and possible good post service conduct are not sufficiently mitigating to warrant an upgrade of his discharge.  The upgrade he received from the ADRB is considered an adequate enhancement to his rights considering all the facts in the case.

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

__CLA___  __VBC___  __CLG___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020568	
SUFFIX		
RECON		
DATE BOARDED	19990311	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19730129	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.