MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 July 2000
	DOCKET NUMBER:   AR2000039037

	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. Raymond J. Wagner		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger Able		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 be upgraded to an honorable discharge.

APPLICANT STATES:  That his discharge was unjust because his behavior was not addressed properly.  He states that he did not receive proper psychological or emotional help that he needed at the time.  He further states that his aptitude scores were not high at the time of his enlistment that his first two reviews were satisfactory and then his scores became unsatisfactory.  He continues by stating that he was offered no rehabilitation, he was placed in various jobs and at the time he waived his rights without legal and psychological counsel his competency was questionable as he only had a 7th grade education.  He concludes by stating his superiors told him that his discharge could be upgraded later.

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

On 2 July 1970, he enlisted in the Army for 3 years in the pay grade of E-1 at age 19.  At the time of his enlistment, the applicant underwent an aptitude test and his scores were not high in some areas.  He also indicated that he was enlisting in the Army with an 8th grade education.  However, he successfully completed his training as a cook.

Nonjudicial punishment (NJP) was imposed against the applicant on 28 July 1970, for failure to be alert on fire and security guard.  His punishment consisted of a forfeiture of pay and extra duty.

On 27 November 1970, he was transferred to Korea.

On 1 June 1971, NJP was imposed against him for being AWOL from 17 May until 24 May 1971.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.  He was also counseled regarding his AWOL.

The applicant was counseled on 10 June 1971, regarding his 1 June 1971 reduction in pay grade and his restriction to the company area.

On 1 July 1971, the applicant was convicted by a summary court-martial of being AWOL from 18 June until 22 June 1971.  His punishment consisted of confinement at hard labor, a reduction in pay grade and a forfeiture of pay. He was also counseled regarding his AWOL and during the counseling, his superior officer noted that he had no interest in being in the Army. 

He had NJP imposed again on 18 July 1971, for failure to be at his appointed place of duty.  His punishment consisted of restriction to the company area.

On 21 July 1971, he underwent a mental status evaluation and was determined to be mentally responsible, able to distinguish right from wrong and able to understand board proceedings.  It was also determined that he met the Army retention standards.

On 30 July 1971, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unfitness.  The commander cited frequent incidents of a discreditable nature with military authorities and an established pattern of shirking as the reasons for the recommendation for discharge.  He acknowledged receipt of the notification on 31 July 1971 and, after consulting with counsel, he waived his rights and he opted not to have his case reviewed before a board of officers.  He also opted not to submit a statement in his own behalf.

The recommendation for discharge was approved by the appropriate authority on 17 August 1971.  Accordingly, on 23 August 1971, he was discharged under the provisions of Army Regulation 635-212 for unfitness.  He had completed 1 year, 1 month and 11 days of total active service.

On 7 January 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  

On 1 December 1976, this Board denied the applicant’s request for an upgrade of his discharge.

The ADRB denied his request for an upgrade discharge again on 16 January 1984.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the 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.  An undesirable discharge was normally considered appropriate.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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 substantiated by the evidence of record.  The records clearly show that his behavioral problems were addressed as he was repeatedly counseled and punished for his acts.  The records further show that he underwent a mental status evaluation and was determined to be mentally responsible, able to distinguish right from wrong and able to understand board proceedings.  It was also determined that he met the Army retention standards.  

4.  The records also show that he conferred with counsel and he made a conscious decision to waive his right to have his case reviewed before a board of officers.  

5.  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.

6.  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

___ra ___  ___js ___  ___rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039037	
SUFFIX		
RECON	1976/12/01	
DATE BOARDED	2000/07/11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/08/23	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	583	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  592	144.5100/A51.00/frequent involvement	
2.  595	144.5400/A54.00/shirking	
3.		
4.		
5.		
6.