MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            12 January 2000
	DOCKET NUMBER:   AR1999026203

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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 other than honorable conditions be upgraded to at least a general discharge.

APPLICANT STATES:  In effect, that the chain of command unfairly used their position to pass those recruits who were in favor and that he was not one of the selected few.  He further states that he believes that the commander singled him out and that he (the commander) was aware of the articles that he could use to put him (the applicant) out of the service with just 8 months remaining on his enlistment.  He continues by stating that he did not know his rights, was made to feel inferior to others, was unjustly punished for offenses that others were not punished for, and that his ratings were good and favorable and had he known then what he knows now he would have made better choices.  He also states that the Army is supposed to be the custodian of his medical records; however, to date they have not been found.

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

The applicant enlisted in Oklahoma City, Oklahoma on 23 June 1978 for a period of 4 years, training as a cavalry scout, assignment to Europe, and a cash enlistment bonus of $2,500.00.  He completed his training and was assigned to Germany on 1 November 1978.

On 24 March 1980 nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order issued by a superior commissioned officer. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, and extra duty for 45 days. 

On 22 April 1980 NJP was imposed against him for disobeying a lawful order of an NCO and failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and restriction for 14 days.

The applicant was transferred to Fort Benning, Georgia on 10 October 1980.

On 5 February 1981 NJP was imposed against him for disobeying a lawful order from a senior NCO.  His punishment consisted of a forfeiture of pay and extra duty for 7 days.

Nonjudicial punishment was again imposed against him on 13 February 1981 for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and restriction for 14 days. 

On 27 May 1981 NJP was imposed against the applicant for selling government property at a local pawn shop.  His punishment consisted of 7 days extra duty.

On 8 July 1981 he was convicted by a special court-martial of stealing property belonging to another enlisted soldier.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay for 6 months.  Consequently, he was transferred to the Army Retraining Brigade at Fort Riley, Kansas for rehabilitative training.

Nonjudicial punishment was imposed against the applicant on 22 September 1981 for disobeying a lawful order from a senior NCO.  His punishment consisted of a forfeiture of pay and extra duty and restriction.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant which indicates that he was discharged on 10 November 1981 under other than honorable conditions under the provisions of Army regulation 635-200, chapter 14, for frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 11 months, and 10 days of total active service and had 56 days of lost time due to imprisonment. 

It is also noted that he was separated on temporary records and a soldier’s affidavit.  It also appears that his medical records were mailed to the Veterans Administration in Muskogee, Oklahoma in July 1996 per a request from that agency.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Military Records are the property of the Department of Defense until such time as an individual no longer holds any military status.  Once a personnel is released from any military status or obligation to the Department of the Army, the records become property of the U.S. Government and come under the jurisdiction/custodianship of the National Personnel Records Center in St. Louis, Missouri.  However, in the case of medical records, when a person is separated from the service, the custody of medical records becomes the responsibility of the VA Regional office located nearest to the address where the individual resides and is depicted on the DD Form 214. 

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established the policy and prescribes procedures for separating members for various types of misconduct that included frequent involvement in incidents of a discreditable nature with civil or military authorities.  It provided that action would be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions 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, 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.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant was sent to the Army Retraining Brigade, a unit that was designed to rehabilitate soldiers during a sentence of confinement with the hopes of returning soldiers back to duty as productive members and afford them an opportunity to serve out the remainder of their service honorably.  It appears that the applicant chose not to take advantage of the opportunity afforded to him at the time.

4.  The applicant’s contention that the Army is supposed to maintain his military medical records is without merit.  Once members no longer have any obligation to the Army, their records are turned over to the National Personnel Records Center.  However, in the case of medical records, they are transferred to the VA Regional Officer nearest to the address that the individual indicates they will reside.  In the applicant’s case, his medical records were released to the VA Regional Office in Muskogee, Oklahoma. 

5.  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.

6.  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

___js ___  ___inw __  ___ls____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026203	
SUFFIX		
RECON		
DATE BOARDED	2000/01/12	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1981/11/10	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	626/misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626 	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.