MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           16 December 1999
	DOCKET NUMBER:   AR1999026055

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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 discharge under other than honorable conditions (UOTHC), be upgraded to an honorable discharge.  

APPLICANT STATES:  In effect, that he was just a kid; that he did not want to be kicked out of the military but he had no choice.   

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

The applicant was born on 23 November 1959.  On 28 June 1978, the applicant enlisted in the Regular Army for 3 years.  He completed the required training and was awarded military occupational specialty 12B10 (Combat Engineer).  The highest grade he achieved was pay grade E-2.

The applicant’s military records indicates that in within an 8 month period the applicant was counseled on twelve different occasions for being disrespectful, for disobeying lawful orders, for his poor personal appearance, for poor duty performance and for alcohol and drug use.

On 11 September 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful to a commissioned officer.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $97.00 pay, 10 days restriction and extra duty.

On 24 October 1979, the applicant was barred from reenlistment.  The bar from reenlistment was based on the applicant’s misconduct and action, which indicated that he could not be rehabilitated.

On 25 October 1979, the applicant accepted an NJP under Article 15, UCMJ, for being disrespectful to a commissioned officer.  His imposed punishment was a forfeiture of $100.00 pay, 14 days restriction and extra duty.

On 26 November 1979, the applicant accepted an NJP under Article 15, UCMJ, for failure to go at the time prescribed to his appointed place and for disobeying a lawful order.  His imposed punishment was a forfeiture of $240.00 pay per month for 2 months, 45 days restriction and extra duty.   

On 19 December 1979, a report of physical and mental status evaluation indicated that the applicant had no physical or mental defects sufficient to warrant separation through medical channels.  That report also indicated that the applicant was mentally responsible, could distinguish right from wrong, and adhere to the right.  No character or behavior disorder was diagnosed. 

On 10 January 1980, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  The commander’s recommendation was based on the applicant’s poor performance of duty, his lack of initiative and enthusiasm, his attitude toward his job and fellow soldiers and action which indicated that he could not be rehabilitated for productive military service.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance, and representation before a board of officers.  

On 7 February 1980, the Commanding General approved the recommendation and directed the issuance of discharge UOTHC.  On 21 February 1980, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-200, chapter 14, for misconduct (frequent incidents of a discreditable nature with authorities), with a discharge UOTHC.  He had completed 1 year, 7 months and 24 days of creditable active service.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities; desertion or absence without leaves.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief. 

3.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of service determination at the time of discharge was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel.  

4.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

__fkm___  __rvo___  __sk____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026055	
SUFFIX		
RECON		
DATE BOARDED	19991216	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19800221	
DISCHARGE AUTHORITY	AR635-200, chapter14.  .  .  .  .  	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6000	
2.		
3.		
4.		
5.		
6.