MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:             27 January 2000                 
	DOCKET NUMBER:   AR1999028549

	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.

	Ms. Antoinette E Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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 general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In effect that he was a very good soldier while in the military service.  That he feels that he was treated unfair by some of the charges he received, which caused him to react by asking for a general discharge before his tour of duty was over.  He further states his military records and performance will show that he did more than what it took to be a good soldier.  

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

He enlisted in the Regular Army on 22 January 1975 and received basic training and advanced training in military occupational specialty (MOS) 36K20 (Field Wireman) at Fort Dix, New Jersey.  

On 28 January 1976, the applicant received nonjudical punishments (NJP) under the provisions of Article 15, Uniform Code Military Justice, for willfully disobeying a lawful order from his superior, noncommissioned officer (NCO).  His punishment included forfeiture of $50.00 pay and extra duty for 7 days.

His second, NJP was for absenting himself from his appointed place of duty on
10 February 1976.  His punishment included reduction to pay grade of E-1, forfeiture of $84.00 pay and extra duty for 14 days.

He was assigned to Fort Riley, Kansas, for duty in his MOS on 23 July 1976.

While assigned to Fort Riley, the applicant, on 17 June 1976, received his third NJP for willfully disobeying a lawful order from his superior NCO.  His punishment included forfeiture of $200.00 pay, extra duty for 45 days, and restriction to place of duty for 45 days, (both suspended for 60 days).

On 5 October 1976, he received his fourth and last NJP for having an alcoholic beverage over 3.2% alcohol in the billets.  His punishment included forfeiture of
$84.00 pay and extra duty for 14 days.

Also while at Fort Riley, he received several counselings for disobeying lawful orders, his attitude, his lack of initiative, his appearance and for failure to be at his appointed place of duty.

On 25 October 1976, the applicant’s unit commander initiated action to separate him with a GD under the provisions of AR 635-200, paragraph 5-37, (the Expeditious Discharge Program (EDP)).  The applicant was advised of his rights, consulted with legal counsel and was informed of the impact of a GD, under honorable conditions discharge.  He voluntarily consented to the discharge, but declined to submit a statement in his own behalf.

On 12 November 1976, the approving authority, approved the separation action and directed a GD.  

On 19 November 1976, the applicant was discharged from active duty under the provisions of AR 635-200, paragraph 5-37 (EDP), for failure to maintain acceptable standards for retention with a GD.  He had 1 year, 9 months and
29 days of creditable service and no lost time.  The highest grade he achieved was pay grade E-2.  

Army Regulation 635-200, in effect, at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 5-37 of this regulation provided, in pertinent part, for the separation of individuals determined to clearly be substandard performers.  This paragraph also provided for the separation of those individuals who obviously could not adjust to the Army environment, and or those who responded initially but within a short period of time demonstrated that they were incapable of permanent adjustment.  Under this regulation a GD or a HD was considered appropriate.  Further, the regulation then in effect stated that no individual would be given a GD by the separation authority unless the commander initiating the action for separation recommended it and the soldier had the opportunity to receive legal counsel.

There is no record that he ever submitted a request for review of his discharge by the Army Discharge Review Board within that board’s 15-year statute of limitation.

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 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 therefor, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  His substandard record of service fully supported the directed discharge actions, as evidenced by his repeated NJP actions and counselings.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

__INW___  __EJA___  __SK___  DENY APPLICATION

					Karl F. Schneider
					Director, Army Review Boards Agency

INDEX

CASE ID	AC1999028549	
SUFFIX		
RECON		
DATE BOARDED	20000127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	  	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.