MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 September 2000                   
	DOCKET NUMBER:   AR2000043071

	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	
	Mrs. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Mr. Hubert O. Fry, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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, reconsideration of his request for an upgrade of his under other than honorable conditions discharge (UOTHC) which this Board denied on 24 February 1976.  The Memorandum of Consideration is not available and the case is reviewed de novo.

APPLICANT STATES:  In effect, that his discharge UOTHC be upgraded to a 
general discharge.  He further states in effect, that he was young and immature.  He also states in effect, that he had a misunderstanding with his commander and what he said to him was perceived as a threat.  

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

On 21 November 1972, the applicant enlisted in the Regular Army at the age of 17, with parental consent for a period of 3 years.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 94B (Cook).  He was assigned to the 1st Battalion, 81st Armor, Fort Hood, Texas.  The highest grade he achieved was pay grade E-3.

The applicant’s military record shows that he was absent without leave (AWOL)
for 21 days in January 1973, however, his file shows no punishment for the 
offense.

On 17 May 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order. His imposed punishment was a reduction to pay grade E-2, a forfeiture of 
$84.00 pay, 7 days restriction and extra duty.

On 26 August 1974, the applicant accepted an NJP for stealing two Champion Spark Plugs from the Main Post Exchange at Fort Hood, Texas, for being AWOL from 1 to 14 July 1974 and for failure to go to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of 
$100.00 pay and 30 days extra duty.

On 16 October 1974, the applicant was convicted by a special court martial of
two specifications of willfully disobeying a lawful order, of being AWOL from 
22 to 30 August 1974 and of communicating a threat.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of $200.00 pay per month for 4 months and a reduction to pay grade E-1.

On 22 October 1975, the applicant was transferred from the Army confinement facility, Fort Hood, Texas to the Army Retaining Brigade, Fort Riley, Kansas. 

Between 21 November 1974 and 6 January 1975, he was formally counseled on numerous occasions for his failure to obey orders, for creating a disturbance, for being unprepared for inspection and for failure to follow instructions.  His record shows a long list of observation reports and minor incidents while at the retraining brigade.

On 17 January 1975, the commander notified the applicant that he was being recommended for discharge under Army Regulation 635-200, chapter 13, for unfitness (frequent incidents of a discreditable nature).  The commander’s recommendation was based on the applicant’s numerous occasions of misconduct, his unwillingness to accept military authority and action, which indicated that he could not be rehabilitated for productive military service.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  The applicant acknowledged notification; he requested personal appearance before a board of officers and representation by military counsel.  He was afforded the opportunity to submit statements in his own behalf, but declined to do so. 

The applicant underwent a mental status evaluation and medical examination, which cleared him for separation.

On 4 February 1975, the applicant received notification to appear before a board of officers with legal counsel.  

On 24 February 1975, the board of officers convened.  The board recommended that the applicant be discharged for unfitness. 

On 28 February 1975, the appropriate authority approved the board’s recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 3 May 1975, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 13, for unfitness with a UOTHC.  He completed 1 year, 10 months, and 13 days of creditable active service and had 150 days of lost time.

On 22 July 1975, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

On 24 February 1976, the Army Board for Correction of Military Records (ABCMR) denied the applicant’s request for correction of his military records.
The Memorandum of Consideration is missing from his file.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified 

for further military service because of unsatisfactory performance.  Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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 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 record of military service.

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

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

__hof___  __jpi___  __rks___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043071	
SUFFIX		
RECON		
DATE BOARDED	20000919	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19750503	
DISCHARGE AUTHORITY	AR635-200, Chapter 13 .  .  .  .  .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.