MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 November  1999
	DOCKET NUMBER:   AR1999026200

	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:

	Ms. Erin J. Olmes		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. James E. Anderholm		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 honorable conditions be upgraded. 

APPLICANT STATES:  In effect, that he was court-martialed for an offense, which he can not remember and then offered a discharge.  

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

On 20 March 1969, the applicant enlisted in the Regular Army for 2 years.  His military occupational specialty 76A (Supply Clerk).  The highest grade achieved was pay grade E-3.

On 13 June 1969, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for leaving his appointed place of duty without proper authority.  His imposed punishment was an oral reprimand, a forfeiture of $50 pay per month for 2 months, 21 days restriction and 15 days extra duty. 

Between 9 April and 20 July 1970, the applicant received four unsatisfactory Conduct and Efficiency ratings.  The applicant’s records indicated that he had been assigned to various duties and served under different officers and noncommissioned officers.  In each instance, his performance of duty was unsatisfactory.  The record also indicated that he was counseled on numerous occasions about his poor duty performance.  There is no indication in his military records that he made an effort to improve his duty performance.     

On 23 and 30 July 1970, the applicant accepted two NJP’s, under Article 15, UCMJ, for two occasions of being disrespectful toward a commissioned officer and for breaking restriction.  However, the particulars concerning his punishment are missing from his file.  

On 31 August 1970, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unsuitability and that he be required to appear before a board of officers to determine whether he should be discharged before the expiration of his term of service.  The commander’s recommendation was based on the applicant’s habits and traits of character that show an incapacity to become a satisfactory soldier, manifested by repeated commission of petty offenses, habitual shirking 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.  

On 2 September 1970, a mental and a physical status evaluation found the applicant qualified for separation.  He was considered mentally and physically competent to participate in board proceedings.
On 8 September 1970, the applicant appeared before the board of officers with counsel.  The board found the applicant unsuitable for further retention in the military service because of habits and traits of character that show an incapacity to become a satisfactory soldier and recommended that he be discharged from the service because of unsuitability with a general discharge.  The Commanding General approved the recommendation, waived further rehabilitation requirements and directed the issuance of a general discharge. 

On 13 September 1970, the applicant was discharged in pay grade E-3, under the provisions of Army Regulation 635-212, for unsuitability (apathy defective attitude and inability to expend effort constructively), with a general discharge.  He had completed 1 year, 5 months and 24 days of creditable active service.  He was awarded the National Defense Service Medal.

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel.  That regulation provided, in pertinent part, that commanders would separate a member when, in the commander’s judgement, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.  When separation for unsuitability a general or an honorable discharge 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, 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.  There is no record of the applicant being discharged in lieu of trial by a court- martial. 

3.  However, the applicant appeared before a properly constituted administrative separation board, which recommended the discharge UOTHC.  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 military service.  

4.  The type of discharge directed and the reasons therefor 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

__ejo___  __jlp___  __jea___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026200	
SUFFIX		
RECON		
DATE BOARDED	19991118D	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19700913	
DISCHARGE AUTHORITY	AR635-212.  .  .  .  .  	
DISCHARGE REASON	A40.00/A43.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.4000	
2.	144.4300	
3.		
4.		
5.		
6.