MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            8 December 1999                  
	DOCKET NUMBER:   AR1999028047

	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. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James P. Huber		Member	
	Mr. Arthur A. Omartian		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 be upgraded.

APPLICANT STATES: In effect, that all aspects of his case was not taken into consideration at the time.  In addition he should have been transferred out of the 
Battalion/Division, not just to a different company. He further states that he has a 
good record in the National Guard thus far.

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

He enlisted in the Regular Army on 19 March 1971, for a term of 2 years, and had no prior service.

On 24 August 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (NJP) for being absent without leave (AWOL) from 25 July to 9 August 1971.  His imposed punishment was a forfeiture of $50.00 pay per month for 2 months, 30 days restriction, 15 days extra duty and a reduction to pay grade E-1.  Forfeiture suspended for 30 days.

On 2 December 1971, the applicant accepted NJP for failing to obey a lawful order.  His imposed punishment was reduction to pay grade E-1, a forfeiture of $45.00 pay per month for 1 month, 10 days restriction and 10 days extra duty.

On 28 February 1972, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty.  His imposed punishment was a forfeiture of $50.00 pay per month for 1 month.

On 6 March 1972, the applicant was convicted by a special court-martial for 
being AWOL from 25 December 1971 to 21 January 1972.  His imposed punishment was hard labor without confinement for 2 months, and restriction for 2 months.

On 18 May 1972, the applicant accepted NJP for striking a non commissioned officer in the face with his fist.  His imposed punishment was a forfeiture of $125.00 pay per month for 2 months (suspended for 60 days), 30 days restriction and 30 days extra duty.

On 6 June 1972, the applicant accepted NJP for breaking restriction.  His imposed punishment was 30 days in a Correctional Custody Facility.

On 6 June 1972, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unfitness (frequent incidents of an unfavorable nature with military authorities).

On 22 June 1972, the applicant was advised of his rights by counsel.  He requested consideration of his case by a board of officers, representation by counsel and personal appearance before a board of officers.  He was afforded 
the opportunity to submit statements in his own behalf, but declined to do so.

On 6 July 1972, the applicant completed a psychiatric evaluation.  He was found to be mentally able to distinguish right from wrong and to adhere to right, and posses sufficient mental capacity to act in his own behalf in administrative procedures.

On 15 August 1972, the board of officers, found the applicant unfit for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses of a discreditable nature with military authority and because of habitual shirking.  The board of officers recommended that the applicant be discharged from the service because of unfitness.

On 28 September 1972, the appropriate authority approved the recommendation and directed the discharge under the provisions of Army Regulation 635-212, for habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.

On the same day the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-212, for unfitness with a UOTHC.  He completed 1 year, 4 months and 21 days active service.

Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, were subject to separation for unfitness. 

On 28 July 1977, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade.

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.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.

3.  Considering the applicant’s convictions and court-martial, the characterization of his discharge is appropriate.

4.  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___  __jph___  __aao___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028047	
SUFFIX		
RECON		
DATE BOARDED	19991208	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19720928	
DISCHARGE AUTHORITY	AR635-212 .  .  .  .  .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.