MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 March 2001                  
	DOCKET NUMBER:   AR2000050312

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Donald P. Hupman 		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:  That his general discharge be upgraded to honorable.

APPLICANT STATES:  That he was wrongfully court-martialed and that he asked for a discharge three years after his court-martial.  He contends that he did not have legal counsel or guidance from a senior enlisted person.

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

The applicant was inducted on 17 November 1972.  He served as a food service specialist and was honorably discharged on 29 September 1974 for immediate reenlistment for a period of 6 years.     

On 22 July 1975 the applicant was convicted by a special court-martial of stealing food stuffs of some value.  He was sentenced to be confined at hard labor for 2 months, to forfeit $50 pay per month for 2 months and to be reduced to the grade of Private (E-1).  On 5 September 1975 the convening authority approved the sentence.  On 8 October 1975 the unexecuted portion of the approved sentence to forfeiture of $50 pay per month for 2 months was suspended until 12 November 1975.   

On 21 May 1976 nonjudicial punishment was imposed against the applicant for failure to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay and 14 days of restriction and extra duty.

On 7 November 1977 nonjudicial punishment was imposed against the applicant for being AWOL from 18 August 1977 to 24 October 1977.  His punishment consisted of a reduction to the grade of Private First Class (E-3), a forfeiture of pay and 14 days of restriction and extra duty (suspended for 90 days).

The applicant underwent a separation medical examination on 8 February 1978 and was found qualified for separation. 

On 9 February 1978 the applicant’s commander initiated a request to bar him from reenlistment.  He cited as the basis for his recommendation the applicant’s two nonjudicial punishments; that the applicant has been in the Army for 5 years and is still a Private First Class; that his chances of making it as a career soldier are very poor; and that the applicant continually expresses the desire to get out of the Army.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 27 February 1978.    

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records indicate that on 14 March 1978 he was discharged with a general discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-4c, for unsuitability - apathy, defective attitude or inability to expend effort constructively.  He had served
4 years, 11 months and 19 days of total active service with 132 days lost time due to AWOL and confinement.
 
There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 
13, paragraph 13-4c, provides for discharge due to unsuitability because of apathy, defective attitude or inability to expend effort constructively.  The regulation also states that when separation for unsuitability was warranted an honorable or general discharge was issued as warranted by his military record.  

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 of the contrary, it must be presumed that the applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, was administratively correct and in conformance with applicable regulations.

2.  The type of discharge directed and the reasons for separation appear to be appropriate.

3.  The Board considered the applicant’s contentions that he was wrongfully court-martialed and that he did not have legal counsel or guidance from a senior enlisted person.  However, there is no evidence of record, and the applicant has provided no evidence, to support these contentions. 

4.  The Board reviewed the applicant’s record of service during his last enlistment which included one special court-martial, two nonjudicial punishments, a bar to reenlistment and 132 days of lost time.  The Board determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

5.  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.
 
6.  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

JH_____  DPH_____  JTM____  DENY APPLICATION

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

INDEX

CASE ID	AR2000050312	
SUFFIX		
RECON		
DATE BOARDED	20010313	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19780314	
DISCHARGE AUTHORITY	AR 635-200 Chapter 13  	
DISCHARGE REASON	Unsuitability	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.