MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  30 January 2001
	DOCKET NUMBER:  AR2000043392

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Ms. Brenda F. Hirschi		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 a general (under honorable conditions) discharge.

APPLICANT STATES:  In effect, that his due process rights were violated, that he was discriminated against and that he received an unwarranted discharge within 2 weeks before his regular expiration of term of service (ETS).  In support of his application he submits a copy of a letter of support, a copy of Headquarters, 11th Air Defense Artillery Group Special Court-Martial Order Number 10, dated 20 April 1976, two letters of appreciation, one letter of commendation, a copy of DA Form 3822 (Report of Mental Evaluation) and a copy of his DD Form 214 (Report of Separation from Active Duty).

COUNSEL CONTENDS:  That the applicant served on active duty from 18 July 1974 to 1 July 1976, and received an under other than honorable discharge under the provisions of Army Regulation 635-200, chapter 13.  Counsel also states that the Board’s attention is invited to those injustices raised by the applicant on his application.  Counsel further states this submission, in conjunction with the official army records, amply advance the applicant's contentions and substantially reflect the probative facts needed for equitable review.  Counsel requested that the Board’s final decision reflect sound equitable principles consistent in law, regulation, policy, and discretion.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 18 July 1974 as a hawk missile crewman.

Between January 1975 and January 1976, the applicant was punished three times under Article 15, UCMJ, for being AWOL from 4 December 1974 to 3 January 1975 (30 days), for assault, resisting apprehension, and for disobeying a lawful order from a commissioned officer.  His punishment consisted of a forfeiture of pay, a reduction to the pay grade of E-1, restriction, and extra duty.

The applicant was barred from reenlistment on 19 March 1976 for the aforementioned offenses.

He was convicted by a special court-martial on 1 April 1976 of being disrespectful toward his superior commissioned officer, of disobeying a lawful order from his superior commissioned officer, and of wrongful possession of marijuana.  His sentence consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and confinement at hard labor for 90 days.  The sentence was approved on 20 April 1976.

While in confinement, the applicant underwent a mental status evaluation on 28 April 1976.  The psychiatrist indicated that the applicant had received several 

Articles 15 of multiple offenses since entering the Army, that he blames the military system and takes no responsibility for his actions.  He indicated that there was no evidence of a psychiatric disorder, that the applicant was cleared for administrative action deemed appropriate by his command and that he be given strong consideration for elimination as his motivation for continuation is poor at best.

On 6 May 1976, the commander submitted his recommendation to separate the applicant under the provisions of AR 635-200, chapter 13, for unfitness.  He based his recommendation on the applicant’s frequent incidents of a discreditable nature with military authorities.  After consulting with counsel, the applicant submitted his election of rights and waived his case before a board of officers.

On 22 June 1976, the separation authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.  The applicant was discharged on 1 July 1976.  He had a total of
1 year, 7 months, and 29 days of creditable service and had 30 days of lost time due to AWOL. 

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 4 October 1977.  The ADRB determined that his discharge was proper and denied his request on 24 May 1979.

The ADRB proceedings indicated that the applicant’s waiver statement and indication of having consultation are not present in the applicant’s records.  However, the commander’s recommendation for elimination definitely established that the applicant was notified properly, responded to the notification, and that with counsel he submitted his election of rights and waived a board of officers.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member 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.  The Board notes the applicant’s contention that his due process rights were violated.  However, evidence of record shows that the applicant was notified properly, responded to notification, was afforded the opportunity to consult with counsel, submitted his election of rights, and waived his case before a board of
officers. 

2.  The Board notes the applicant’s contention that he was discriminated against; however, there is no evidence of discrimination.

3.  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.

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

5.  The applicant had 30 days of lost time due to AWOL.  Considering the nature of the offenses, and his otherwise undistinguished record of service, his discharge appears to be appropriate.

6.  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.

7.  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

__ao____  ___to____  __bh___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043392	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010130	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19760701	
DISCHARGE AUTHORITY	AR 635-200 C. 13	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360/189		
2.		
3.		
4.		
5.		
6.