MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 August 2001  
	DOCKET NUMBER:   AR2001052915

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge.

APPLICANT STATES:  That upon release from the Army, he was told that he could request that his discharge be upgraded any time after 6 months.  

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

That on 22 December 1976, he enlisted in the Delayed Entry Program (DEP) of the United States Army Reserve.  His DD Form 3286-40 (Statement for Enlistment-Delayed Entry Program) shows that he enlisted for military occupational specialty (MOS) 36C (Telephone Installer and Lineman).  On 
7 March 1977, he was discharged from the DEP.

On 8 March 1977, he enlisted in the Regular Army for 4 years.  He completed basic training and advanced individual training at Fort Gordon, Georgia and he was awarded (MOS) 36C.  On 1 July 1977, he was assigned to Germany.

On 15 August 1977, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 9 August 1977.   On 29 September 1977, NJP was imposed against him for disobeying a lawful order of a commissioned officer on 3 September 1977.  His punishments included forfeiture of pay, extra duty and restriction.

On 18 May 1978, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 6 and 13 May 1978.  His punishment included forfeiture of $30.00 pay for 1 month, 7 days' restriction and reduction from pay grade E-2 to pay grade E-1 (suspended for 60 days).  On an unknown date, the suspended portion of his punishment to reduction was vacated and he was reduced to pay grade E-1.

On 10 July 1978, NJP was imposed against him for resisting lawful apprehension by military police on 2 July 1978.  His punishment included forfeiture of 
$30.00 pay for 1 month and 10 days' extra duty and restriction. 

On 3 September 1978, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to maintain acceptable standards for retention (Expeditious Discharge Program(EDP)), with a GD.  He cited as the basis for his recommendation the applicant's immature attitude and lack of promotion potential.  The commander added that the applicant had failed to adapt socially and emotionally to military life and he lacked the motivation and self-discipline necessary to be more than a marginal soldier.  He concluded that it was in the best interest of the Army to expeditiously discharge the applicant.
The applicant's records do not contain a statement that shows that he consulted with legal counsel.  However, his records do contain a statement dated 
4 September 1978 that shows he acknowledged notification and voluntarily consented to the discharge.  He declined to submit a statement in his own behalf. 

On 15 September 1978, the approval authority approved the recommendation and directed the issuance of a GD. 

On 11 October 1978, the applicant was separated with a GD under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to maintain acceptable standards for retention (EDP).  He had completed a total of 1 year, 
7 months and 4 days of active military service and he had 2 months and 17 days of prior inactive service.

Army Regulation 635-200, in effect, at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 5-31 of this regulation provided, in pertinent part, for the separation of those individuals who failed to maintain acceptable standards for retention.  This paragraph also provided for the separation of those individuals that demonstrated an inability to adapt socially or emotionally to the Army environment or those who responded initially, but within a short period of time demonstrated that they were incapable of permanent adjustment.  Under this regulation, a GD or an HD was considered appropriate.  Further, the regulation then in effect stated that no individual would be given a GD by the separation authority unless the commander initiating the action for separation recommended it and the soldier had the opportunity to receive legal counsel.

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.  Although the available records do not contain a statement indicating that the applicant received legal counsel, he would have consulted with legal counsel prior to signing the statement that he voluntarily signed consenting to discharge under the provisions of chapter 5-31, for failure to maintain acceptable standards for retention EDP.  The Board presumes administrative regularity and the applicant has provided no information that would indicate the contrary.   

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

_JEV___  __BJE___  __WDB__  DENY APPLICATION

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

INDEX

CASE ID	AR2001052915	
SUFFIX		
RECON	20010821	
DATE BOARDED		
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19781011	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	A40.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4000	
2.		
3.		
4.		
5.		
6.