PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 October 1999                   
	DOCKET NUMBER:   AR1999027116

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Ms. Kathleen A. Newman		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

3.  The applicant states that the Army should consider his application due to his terminal illness (AIDS).

4.  The applicant’s military records show that he enlisted in the Regular Army on 7 March 1978.  He was promoted to Specialist Four, E-4 on 1 September 1979. He was honorably discharged on 7 September 1980 for the purpose of immediately reenlisting on 8 September 1980.

5.  Between 29 September 1980 and 5 October 1981, the applicant accepted non-judicial punishment on four separate occasions for failing to go to his appointed place of duty; two specifications of failing to go to his appointed place of duty; dereliction in the performance of his duties; and failing to obey a lawful order, respectively.  (On 28 July 1981, he had been convicted by a summary court-martial of failure to repair and disobeying a lawful order.  He was sentenced to confinement at hard labor for 30 days.)  

6.  On 5 October 1981, the commander at the U. S. Army Retraining Brigade, Fort Riley, KS initiated separation proceedings under Army Regulation 635-200, Chapter 14, misconduct.  He cited several instances of failing barracks or in-ranks inspections, reprimands, and unsatisfactory work evaluations.

7.  The applicant acknowledged notification and consulted with legal counsel.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, waived consulting counsel and elected not to submit a statement in his own behalf.

8.  The appropriate commander approved the recommendation and directed he be furnished a discharge UOTHC.

9.  The applicant was discharged on 28 October 1981, under the provisions of Army Regulation 635-200, Chapter 14, misconduct - frequent incidents of a discreditable nature with civil or military authorities.  He had completed 3 years, 6 months and 27 days of creditable active service and had 25 days lost time. 

10.  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 leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

11.  On 22 November 1993, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable laws and regulations in effect at the time of his separation.

2.  Although the Board takes cognizance of the applicant’s illness, this factor does not warrant the relief requested and it would not be appropriate to change the records to show that he was discharged honorably from the reenlistment commencing on 8 September 1980.  However, it appears that his honorable discharge of 7 September 1980 should be considered as having been issued as a complete and unconditional separation.

3.  The circumstances of the applicant’s honorable discharge on 7 September 1980 have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 7 September 1980.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__mkp___  __gdp___  __kan___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Margaret K. Patterson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999027116	
SUFFIX		
RECON		
DATE BOARDED	19991027	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19811028	
DISCHARGE AUTHORITY	AR 635-200, Ch 14 	
DISCHARGE REASON	A51.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.