MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 January 2001                   
	DOCKET NUMBER:   AR2000049925

	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. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 under other than honorable conditions discharge (UOTHC) be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he was 17 years old when he entered the military.  He did not receive proper counseling and feels that he deserves an honorable discharge and veterans benefits because of what he went through.  He further believes that he deserves a refund of the monies that he put into trust funds and other things.

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

On 31 August 1979 and with parental consent, the applicant enlisted in the Regular Army at the age of 17 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 43M10 (Fabric Repair Specialist).  The highest pay grade he achieved was pay grade E-2.  

On 29 January 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to repair.  His imposed punishment was a forfeiture of $50.00 pay and 7 days restriction.

On 7 April 1980, the applicant accepted NJP for dereliction of duty.  His imposed punishment was a forfeiture of $104.00 pay and a reduction to pay grade E-1 (suspended until 6 August 1980).

On 22 July 1980, the applicant accepted NJP for failure to repair.  His imposed punishment was a forfeiture of $104.00 pay, a reduction to pay grade E-1, 14 days restriction and extra duty.

On 19 August 1980, the applicant accepted NJP for two occasions of failure to repair.  His imposed punishment was a forfeiture of $100.00 pay and 7 days in correctional custody.

DA Form 4187 (Personnel Action) shows that on 16 September 1980, the applicant was arrested and placed in the Cumberland County Jail, Fayetteville, NC for driving under the influence.  The particulars surrounding the incident are missing from his records.

On 31 October 1980, a bar to reenlistment was initiated against the applicant by his commander.  The recommendation was based on the applicant’s poor duty performance.  The applicant was counseled and advised of the basis for the action.

On 17 November 1980, the applicant was informed that the bar to reenlistment was approved and he was advised of his rights to appeal.

On 12 December 1980, the commander notified the applicant that he was being recommended for discharge under the provision of Army Regulation 635-200, chapter 14, for misconduct, based on his involvement with frequent incidents of a discreditable nature with military and civilian authorities.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance, and representation before a board of officers.  He was afforded the opportunity to submit statements in his behalf, but declined to do so.

The applicant’s record shows that on 22 January 1981, he pleaded guilty to felonious larceny in the Superior Court of Cumberland County, Fayetteville, NC.
His sentence to civil confinement for not less than 3 years but no more than 5 years was suspended, to 4 years probation.

Between 2 February and 2 March 1981, the applicant was counseled on thirteen different occasions for failure to repair. 

A mental and physical evaluation found the applicant qualified for separation.

On 18 March 1981, the appropriate authority approved the recommendation and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 7 May 1981, the applicant was discharge in pay grade E-1, under the provision of Army Regulation 635-200, chapter 14, for misconduct with a discharge UOTHC.  He had completed 1 year and 8 days of creditable active service.  His Certificate of Release or Discharge from Active Duty (DD Form 214) shows 180 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, convictions by civil authorities; desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is 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 evidence of record does not substantiate the applicant’s allegations that he did not due process of the law.  The discharge proceedings were receive proper counseling. The evidence of record shows that the applicant’s discharge was based on his misconduct.  The evidence of record shows that he was counseled and that he signed forms waiving his rights to legal counsel.

3.  The applicant also contends that he is owed some money, the Board is unsure of what the applicant is implying.  However, his military record shows that he received 4 NJP’s and as part of the punishment, forfeitures was taken from his pay which are not refundable.

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

__jns___  __mhm___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049925	
SUFFIX		
RECON		
DATE BOARDED	20010118	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810507	
DISCHARGE AUTHORITY	AR635-200, Chapter 14	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6000	
2.		
3.		
4.		
5.		
6.