MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           13 July 2000
	DOCKET NUMBER:   AR2000037096

	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. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater 		Chairperson	
	Mr. Melvin H. Meyer 		Member	
	Mr. James E. Anderholm 		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 Undesirable Discharge (UD) be upgraded to a General Discharge (GD) or one issued for medical reasons.

APPLICANT STATES:  That he was 17 years old and did not understand the effect that a UD would have on him; that he was “duped” by his recruiter into believing that he would receive training as either an auto body repairer or a plumber; that he had mental problems and should have been separated with a medical discharge; that following his discharge, he was diagnosed as having a “bi-polar” disorder.  In support of his application, he provides a 9 January 2000 handwritten statement; a copy of a statement prepared by his defense counsel at the time of his separation; a copy of an undated, handwritten statement probably prepared by the applicant at the time of his separation; and a copy of his DD Form 214, Report of Separation from Active Duty.

COUNSEL REQUESTS:  That the Board upgrade the applicant’s discharge as he is currently confined in the Hudson County Correctional Facility, Kearney, New Jersey, and is facing deportation to Poland.  Counsel states that the applicant has lived in the United States for most of his life and should not be deported by the Immigration and Naturalization Service (INS).  If the Army would classify the applicant’s service as honorable, or under honorable conditions, he could remain in this country.

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

He was born on 30 January 1956 in Wroclaw, Poland and immigrated to the United States at the age of 5 years.  With parental consent, he enlisted in the Regular Army for 3 years and the medical remedial program on 9 February 1973. He completed Basic Combat Training at Fort Dix, New Jersey, and was sent to Fort Sill, Oklahoma, for Advanced Individual Training (AIT).  He did not complete AIT and was transferred to a unit at Fort Hood, Texas, with duty as a small arms repairman.

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on several occasions.  While still in AIT at Fort Sill, he received NJP on 30 May 1973 for being absent without leave (AWOL) for 7 days. At Fort Hood, he received NJP on 20 July 1973 for being absent from his place of duty; on 13 August 1973 for disobeying the lawful order of a chief warrant officer, missing formation, AWOL, and failing to go to his place of duty (three specifications); and on 11 October 1973 for failing to go to his place of duty (five specifications), and disrespect toward a noncommissioned officer (NCO).

Also at Fort Hood, the applicant began using illegal drugs (methamphetamine and heroin) and was placed in the Army Drug Abuse Prevention and Control Program (ADAPCP).  He did not successfully complete the program.

On 26 October 1973, court-martial charges were preferred against the applicant for communicating a threat to an NCO, breaking restriction (three specifications), disobeying a lawful order from his commanding officer, disobeying a lawful order from an NCO, and failing to go to his appointed place of duty.  He consulted with legal counsel and requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200.  In so doing, he acknowledged that he was guilty of the charges against him, charges which authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that he had no desire for rehabilitation or further military service, and that he understood the nature and consequences of the undesirable discharge that he might receive.  He submitted a statement in his own behalf.

On 21 November 1973, the Commanding General, III Corps and Fort Hood, accepted the applicant’s request for separation in lieu of trial by court-martial and directed that he be separated with a UD.

The applicant received a separation physical and mental status examination which found no mental or physical defects.  He was separated with a UD on 13 December 1973.  He had 8 months and 2 days of creditable service and 64 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter l0 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge UOHC is normally considered appropriate.  At the time of the applicant’s separation, a UD was issued.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB first considered his case on 24 June 1976 in a personal appearance hearing at the Presidio of San Francisco, California, and denied his request.  He was given a second hearing (records review) by the ADRB on 10 May 1988 and, once again, denied.

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 has failed to submit evidence that would satisfy this requirement.
2.  The applicant was a substandard soldier with a long history of disciplinary infractions and NJP’s.  Court-martial charges were preferred against him and he requested separation for the good of the service in lieu of trial.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall poor record of military service.

3.  The Board acknowledges the applicant’s current legal problems with the INS, but this is not sufficient reason to warrant an upgrade of his UD to general or honorable.

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

__jlp____  __mhm___  __jea___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037096	
SUFFIX		
RECON		
DATE BOARDED	20000713	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19731213	
DISCHARGE AUTHORITY	AR 635-200 c10	
DISCHARGE REASON	A75.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.