MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:                
	DOCKET NUMBER:   AR1999026560

	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. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Ms. 		Chairperson	
	Mr. 		Member	
	Mr. 		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, under honorable conditions discharge be upgraded to honorable.

APPLICANT STATES: In effect, that his enlistment contract was breached and, as such, he is deserving of an honorable discharge.

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

On 25 July 1974 he enlisted in the Regular Army for a period of 2 years.  He successfully completed basic combat training at Fort Ord, California, and advanced individual training (AIT) at Fort Sill, Oklahoma, on 15 November 1974.  He was awarded military occupational specialty (MOS) 15D (Lance Missile Crewman) and was reassigned to a permanent unit at Fort Sill, Oklahoma. 

The applicant’s record documents that the highest permanent rank he held on active duty was private/E-2 and that the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 7 November 1974 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for being absent from his place of duty.  His punishment included forfeiture of $30, and extra duty and restriction for 14 days.

On 11 October 1974 the applicant was apprehended by the Lawton Police Department for possession of marijuana.  He was transferred to military authorities on 14 October 1974 and returned to duty without trial.  He was charged with 4 days lost time under the provisions of Title 10 United States Code.

The applicant was confined by military authorities from 16-17 February 1975.  It appears that he was apprehended for being AWOL and transferred from civilian confinement to military confinement.  He was charged with 2 days lost time under Title 10 United States Code.

On 12 March 1975 the unit commander initiated discharge action on the applicant under the provisions of paragraph 5-37, AR 635-200, the Expeditious Discharge Program (EDP).  The unit commander indicated that the reasons for his proposal to administratively separate the applicant were:  his failure to discharge his duties; a total lack of willingness or ability to follow the directions of his superiors; and 3 company grade NJPs.  The record of NJP for November 1974 is the only available Article 15 in the record.

On 20 March 1975 the applicant was discharged under the provisions of the EDP with a General Discharge Certificate.  He was credited with 7 months and 20 days active military service, and 6 days lost time.

Army Regulation (AR) 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 provides, in part, for the discharge of enlisted personnel whose performance of duty and potential for continued effective service fall below the standards required in the Army.  Individuals discharged under that regulation could be issued a general or honorable discharge.. 

AR 635-200, paragraph 7-16e(4) authorizes separation when a soldier brings a defect to the attention of his or her commander within 30 days after the defect was discovered or reasonably should have been discovered by the soldier.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  The record does not support the applicant’s contention that his discharge should be upgraded due to a breach of his enlistment contract.  There is no evidence in the record that the applicant requested administrative separation due to a defect in his enlistment contract.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The unit commander appropriately determined that the applicant’s quality of service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel.  The type of discharge directed and the reasons therefore were appropriate considering the applicant’s misconduct of record.

3.  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.

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

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029254	
SUFFIX		
RECON		
DATE BOARDED	20000105	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19750320	
DISCHARGE AUTHORITY	AR 635-200 C5	
DISCHARGE REASON	2400	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 9909		
2. 9500		
3.		
4.		
5.		
6.