MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             12 August 1999
	DOCKET NUMBER:    AR1999020820

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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 undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that he was originally disillusioned with the Army when he was not assigned to the 10th Special Forces at Fort Devens, Massachusetts upon completion of his training, as he was told by his recruiter; that when he arrived at the 82nd Airborne Division at Fort Bragg, North Carolina he found that everyone in the unit had a bad attitude and he along with everyone else fell into the pattern of questioning authority, bucking orders, working an angle against higher rank, and staying in a group of only whites while blacks stayed in their own group; that he started to drink so much that he was committed to a halfway house by his first sergeant; after having a bad experience parachuting out of an airplane he refused to jump anymore and after being harassed was reassigned to Fort Riley, Kansas; that on his arrival at Fort Riley there was confusion in the unit he was assigned to which frustrated him which resulted in his going AWOL; that he has suffered the effects of his discharge long enough; that he is suffering from medical problems which are the result of his parachuting out of airplanes while in the Army; and finally that he has been a good citizen, Christian, father, and husband since his discharge and deserves an upgrade to his discharge.  

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

On 14 January 1974, the applicant enlisted in the Regular Army (RA) for 4 years at the age of 19.  He enlisted for a dual option of combat arms bonus, and unit of choice which was specifically designated as the 82nd Airborne Division, and he signed a DA Form 3286-1r (Statements for Enlistment, Part VI-Dual Enlistment Option) to that effect.  The applicant successfully completed basic training at Fort Dix, New Jersey, advanced individual training at Fort Sill, Oklahoma, and the basic airborne course at Fort Benning, Georgia.  Upon completion of his training the applicant was awarded military occupational specialty 13B (Field Artillery Man), additional skill identifier P (Parachutist), and was assigned to the 82nd Airborne Division at Fort Bragg, North Carolina in accordance with his enlistment option.

The applicant’s record shows that he completed over 2 and ½ years of service, and that the highest rank he attained while on active duty was specialist/E-4.  There are no documented acts of valor, significant achievement, or service warranting special recognition contained in the record.  However, there is a recorded disciplinary history which includes the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ; a Bar to Reenlistment Certificate; and the 53 days of time lost due to AWOL which ultimately led to his discharge.

On 26 March 1976, the applicant accepted an NJP for willfully disobeying a lawful order.  His punishment for this offense was a reduction in rank to private first class/E-3.

On 26 May 1976, a Bar to Reenlistment Certificate was imposed on the applicant.  The unit commander cited the NJP outlined in the proceeding paragraph along with the applicant’s negative attitude toward the Army; his inability to handle his personal problems; and a problem with alcohol, as factual and relevant indicators of the applicant’s untrainability or unsuitability.  He further commented that the applicant had been enrolled in operation awareness, a rehabilitation program, as an out patient but made negative progress.  He was later admitted, as an inpatient, to a Halfway House which resulted in unsuccessful closure based on his poor attitude, and his total lack of cooperation with the staff.  In addition, the unit commander listed two dishonored checks issued by the applicant, and two letters of indebtedness received on the applicant in support of the bar to reenlistment action.  

On 11 June 1976, the applicant was terminated from Parachutist duty, and on 
6 July 1976, he was reassigned to Fort Riley, Kansas.  The applicant reported to Fort Riley on 21 July 1976 and departed AWOL the following day, 22 July 1976.  He was dropped from the rolls as a deserter on 23 August 1976, and remained away until surrendering at Fort Devens, Massachusetts on 13 September 1976.

The available records do not contain the specific facts and circumstances concerning the events that led to the applicant’s discharge from the Army.  However, the record does contain a properly constituted DD Form 214.  This document shows that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for conduct triable by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  

There is no indication in the available records that the applicant suffered from any disabling medical condition at the time of his discharge or that he raised any medical issues at discharge.

The DD Form 214 also documents that on 6 October 1976, the applicant was discharged with a UD, after completing 2 years, 7 months, and 2 days of active military service, and having had accrued 53 days of time lost due to AWOL.

There is no indication in the record that the applicant applied to the Army Discharge Review Board, within the 15 year statute of limitations, for an upgrade to his discharge.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of a UD.

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 contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The applicant was provided the assignment option promised him at enlistment, as evidenced by his own signed enlistment option statement contained in the record.  The Board found no evidence of arbitrary or capricious action on the part of the chain of command.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing alcohol rehabilitation, counseling, and by the imposition of nonjudicial punishment, but the applicant failed to respond appropriately to these efforts.  Further, there was no indication in the record that the applicant suffered from medical problems at the time of his discharge.

2.  The Board acknowledges the applicant's successful transition to civilian life and noted his many accomplishments as outlined in his letter to the Board which was enclosed with his application.  However, in review of his entire service record, the Board found that these accomplishments did not overcome the reason for discharge and characterization of service granted.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feels this was not the correct decision, this does not provide a basis for relief.  

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant’s overall record of service.

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

___rvo __  __ja ____  ___mw __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020820	
SUFFIX		
RECON		
DATE BOARDED	1999/08/DD	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/10/06	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A7100	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  807	A92.17	
3.  811	A92.21	
4.  853	A93.19	
5.		
6.