MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           3 October 2000
	DOCKET NUMBER:   AR2000040393

	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. W. S. Chun			
	Ms. Antoinette E Farley		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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:  In effect, that his reason for discharge be changed from the Expeditious Discharge Program (EDP) to a hardship discharge.

APPLICANT STATES:  In essence, that he wants several administrative changes made to his military record.  The areas he lists that should be changed are his name, pension and compensation entitlement, his medals and a hardship (sic-“decommissioned”) discharge.  He provides no information in support of his case.

COUNSEL STATES:  Counsel provides no additional evidence to support the applicant’s case.

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

He enlisted in the Regular Army on 26 September 1978.  He began basic training at Fort Dix, New Jersey on 10 October 1978.  On 22 November 1978 he was assigned to Fort Devens, Massachusetts for advanced training in military occupational specialty (MOS) 05H00 (Electronic Warfare/Signal Intelligence Morse Interceptor), which he did not complete.  On 1 February 1979, he was reassigned to Fort Sill, Oklahoma for retraining in MOS 13F (Fire Support Specialist), which he also failed to complete.  

On 12 March 1979, the applicant received nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code Military Justice, for failing to go to his appointed place of duty.  His punishment included forfeiture of $90.00 pay, with any forfeiture in excess of $45.00 pay suspended for 2 months, and correctional custody for 7 days.

Also while at Fort Sill, 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 3 May 1979, his commander notified him that he was being recommended for discharge under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to maintain acceptable standards for retention under the EDP.  An honorable discharge (HD) was being recommended.  The commander cited the applicant's consistent display of a completely negative attitude towards the military service; poor duty performance, with no desire to do his assigned tasks; his failure to respond to counseling by his superiors, and displaying hostility and contempt towards them; and the overall undesirable effect on his peers as the bases for the separation action.

He was also notified of the rights available to him.  On the same day the applicant acknowledged notification and voluntarily consented to the discharge.  He declined to submit a statement in his own behalf. 

On 17 May 1979, the separation approval authority approved the recommendation and directed his discharge under the EDP with the issuance of a HD in accordance with the provisions of Army Regulation 635-200, paragraph 5-31. 

On 24 May 1979, the applicant was separated with a HD under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to maintain acceptable standards for retention (EDP).  He had completed a total of 7 months and 
29 days of active military service and he had no recorded lost time.  The highest grade he achieved was pay grade E-1.  

Army Regulation 635-200, in effect, at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 5-31 of that 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 general discharge (GD) or a HD was considered appropriate.  Further, the regulation 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 therefore, has failed to submit evidence that would satisfy this 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 action, as evidenced by his NJP action and repeated counselings.

3.  In the applicant's case, his records created in 1978 and 1979 show that he consented to an EDP discharge.  Therefore, the Board concludes that there is no basis established to change the reason for his discharge, he has no entitlement to a pension or other compensation from the military and he is not entitled to any military awards or decorations.

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

5.  If the applicant is requesting a name change, he is advised that for historical purposes, the Army has an interest in maintaining the accuracy of its records.  The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of showing of material error or injustice, this Board is reluctant to recommend that the factual data in those records, to include the name of the service member, be changed.

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

__jns____  __rjw___  __rtd ____  DENY APPLICATION

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

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001003	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.