MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 October 2000                   
	DOCKET NUMBER:   AR2000045242

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Barbara J. Ellis		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 (UOTHC) be upgraded to honorable.

APPLICANT STATES:  The applicant makes no statement.  He provides his Report of Transfer or Discharge, DD Form 214, and a letter from the VA informing him that his discharge does not entitle him to VA benefits as supporting evidence.

COUNSEL CONTENDS:  That a more equitable discharge for the applicant would have been a general under honorable conditions discharge.  Counsel believes there may have been some hostilities between the applicant and his chain of command for a discharge under other than honorable conditions to be assigned.  Counsel also notes that the applicant has provided no reasons as to the inequities or improprieties of the discharge.  

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

He was inducted into the Army on 9 April 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

On 2 May 1969, the applicant was convicted by a special court-martial of being AWOL from 14 – 24 April 1969.  He was sentenced to forfeit $50 pay for 2 months and to be reduced to Private, E-1.  

Between October 1969 and March 1970, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on six occasions for wearing fatigues while not on duty; absenting himself from his unit; being absent without leave (AWOL) from 5 – 16 January 1970; being AWOL from          17 – 19 January 1970; absenting himself from his place of duty; and being AWOL from 5 – 9 March 1970; respectively.
In January and February 1970, the applicant was involved in four incidents with civil authorities (carrying a concealed weapon, muffler violation, and twice for speeding.)

On 11 February 1970, the applicant completed a psychiatric evaluation.  No disqualifying mental defects sufficient to warrant disposition through medical channels were found.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in board proceedings.

On 29 April 1970, the applicant’s commander initiated separation action under Army Regulation 635-212 for unfitness, frequent incidents of a discreditable nature with civil or military authorities.  The applicant was advised of his rights by counsel.  He waived consideration of his case by a board of officers; waived personal appearance before such a board; elected not to make a statement on his behalf; and waived representation by counsel.

On 1 June 1970, the appropriate authority approved the recommendation and directed issuance of an Undesirable Discharge Certificate (a discharge UOTHC.)

On 9 June 1970, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness.  He had completed 1 year, 11 months and 15 days of creditable active service and had 78 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was 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.  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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering his record of disciplinary actions and his record of conflict with civil authorities, the characterization of his discharge as under other than honorable conditions was and still is appropriate.

3.  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

__rvo___  __lds___  __bje___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045242	
SUFFIX		
RECON		
DATE BOARDED	20001017	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700609	
DISCHARGE AUTHORITY	AR 635-212 	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.