MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 May 2000
	DOCKET NUMBER:   AR2000038180

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		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 discharge under other than honorable conditions be upgraded to an honorable discharge.

APPLICANT STATES:  That at the time of his discharge he was told that he still had some benefits and that his discharge would be upgraded.

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

On 23 August 1976, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as an infantryman.  On 23 February 1977, he was promoted to the pay grade of E-2, and he was promoted to the pay grade of E-3 on 1 May 1977.

Nonjudicial punishment (NJP) was imposed against the applicant on 18 August 1977 for stealing a Buxton wallet.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 24 July 1978, he had NJP imposed against him for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade, restriction and extra duty.

The evidence of record shows that the applicant was counseled four times between 17 August and 30 September 1978 for failure to repair, drinking on duty and for disrespect.

On 5 October 1978, the applicant had NJP imposed against him again for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade, restriction and extra duty.

The applicant was counseled again on 25 October 1978 for failure to repair.  During the counseling he was informed that he had been late for formation six times and that if he was late again; action to eliminate him from the Army for unfitness or unsuitability would be initiated.  He was also informed of the consequences of a less than honorable discharge to include a loss of virtually all veteran’s benefits.

On 21 February 1979, NJP was imposed against him for failure to obey a lawful order.  His punishment consisted of a forfeiture of pay.

He had NJP imposed against him a fifth time on 27 February 1979 for being AWOL from 21 December until 28 December 1978, from 13 January until 30 January 1979, from 31 January until 1 February 1979 and from 6 February until 8 February 1979.  His punishment consisted a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 1 March 1979, NJP was imposed against him for failure to obey a lawful order.  His punishment consisted of a forfeiture of pay.

On 27 February, the applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, chapter 14 had been initiated.  He acknowledged receipt of the notification on 1 March 1979 and, after consulting with counsel, he waived his rights and opted not to submit a statement in his own behalf.  He also acknowledged that he understood the affects of a discharge under other than honorable conditions and that he may be ineligible for many or all benefits as a veteran under both federal and state laws.

The appropriate authority approved the recommendation for discharge on 26 March 1979.  Accordingly, on 4 April 1979, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had completed 2 years, 6 months and 4 days of total active service and he had 38 days of lost time due to AWOL.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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.

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.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.
2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by the evidence of record.  The records clearly show that during the discharge process he acknowledged that he understood the affects of a discharge under other than honorable conditions and that he may be ineligible for many or all benefits as a veteran under both federal and state laws.

4.  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.

5.  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

__ewl ___  ___klw __  __eja ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038180	
SUFFIX		
RECON		
DATE BOARDED	2000/05/25	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1979/04/04	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  713	144.7110/A71.10/absent from appointed place	
2.  725	144.7600/A76.00/disrespect	
3.  718	144.7500/A75.00/DOLO	
4.		
5.		
6.