MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 March 2001
	DOCKET NUMBER:   AR2000049420

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		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 honorable and that the narrative reason for separation be changed to reflect that he was separated for the convenience of the government.

APPLICANT STATES:  In effect, that under today’s standards he would not receive such a bad discharge and that it is an injustice for him to continue to suffer the consequences of a bad discharge.  He further states that his average conduct and efficiency ratings were good, that his record of promotions indicate he was a good soldier, that he was close to finishing his time, that his ability to serve was impaired by his youth and immaturity, that his offenses were minor isolated offenses, that his personal and financial problems impaired his ability to serve, that his enlistment contract was not satisfied, that he tried to apply for a hardship discharge and was unfairly told to forget it, that he should have been medically discharged because he was not medically qualified to serve, and that his command abused their authority when they gave him a bad discharge.

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

He enlisted at the age of 19 in Philadelphia, Pennsylvania on 1 November 1972 for a period of 4 years, assignment to the 101st Airborne Division for a minimum of 16 months and a cash enlistment bonus to be paid upon completion of his advanced individual training (AIT) and award of an military occupational specialty (MOS) of an infantryman.

He successfully completed his basic and airborne training and was transferred to Fort Campbell, Kentucky on 20 February 1973.  He completed his AIT as a light weapons infantryman, was awarded the MOS of an infantryman and remained at Fort Campbell for his initial assignment.

On 26 November 1973 nonjudicial punishment (NJP) was imposed against him for being disrespectful in language towards a superior noncommissioned officer.  His punishment consisted of a forfeiture of pay, extra duty and restriction.  He elected not to appeal his punishment.

He remained at Fort Campbell for 17 months and 16 days and was transferred to Fort Stewart, Georgia on 6 August 1974.

On 3 September 1974, NJP was imposed against him for being absent without leave (AWOL) from 19 August to 2 September 1974.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.  He elected not to appeal his punishment.

The applicant again had NJP imposed against him on 4 March 1975 for being AWOL on 25 February 1975.  His punishment consisted of a forfeiture of pay, extra duty and restriction.  He did not appeal the punishment.
On 12 March 1975, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay (suspended for 6 months), extra duty and restriction.  He did not appeal the punishment and the suspended portion of his sentence was subsequently vacated. 

He again had NJP imposed against him on 21 May 1975 for failure to go to his place of duty, being AWOL from 13 May to 14 May 1975 and for disobeying a lawful order from a commissioned officer (his commander).  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay (suspended for 6 months), extra duty and restriction.  He appealed the punishment and his appeal was denied.  On 13 June 1975 the suspended portion of his sentence was vacated.

On 12 December 1975, NJP was imposed against him for being AWOL from 18 September to 15 October 1975, from 16 October to 21 October 1975, for three specifications of failure to go to his place of duty, for disobeying a lawful order from a commissioned officer, and for disobeying a lawful order from a superior noncommissioned officer (his first sergeant).  His punishment consisted of a forfeiture of pay and extra duty.

On 15 December 1975 he received an enlisted evaluation report (EER) rating with a score of “1”, the lowest score possible out of a possible 125 points.  His rater indicated that the applicant displayed no ability, initiative or enthusiasm, that he had a bad attitude towards his duties and the Army, that he did not seek any self-improvement and that he was not loyal or dependable.  His indorser indicated that he should be removed from the Army, that he was not responsible nor interested in what he does or fails to do, that he shows no initiative or leadership capability, that he was a hindrance to his fellow soldiers and that his attitude and appearance were indicative that he did not wish to improve himself or help to accomplish the platoon mission.  The applicant refused to sign the report.

The applicant’s separation physical/medical examination and the facts and circumstances surrounding his separation are not present in the available records.  However, the records do contain a report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 9 January 1976 under the provisions of Army Regulation 635-200, chapter 13 for unfitness/shirking.  He had served 3 years, 1 month and 18 days of total active service and had 51 days of lost time due to AWOL.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual could be found unfit for various types of misconduct that included frequent incidents of a discreditable nature with military authorities.  An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, chapter 14, the regulation currently in effect, provides for the separation of enlisted personnel for misconduct based on minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.  A discharge under other than honorable conditions is 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions and supporting documents have been noted by the Board.  However, not only are they not supported by the evidence of record, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service.

4.  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.

5.  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

____fe __  ___rjw __  ____wdp_  DENY APPLICATION

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

INDEX

CASE ID	AR2000049420	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/03/20	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/01/09	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.