MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 August 2001
	DOCKET NUMBER:   AR2001056086

	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. P. A. Castle		Analyst	

The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula Mokulis		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 undesirable discharge be upgraded.

APPLICANT STATES:  In effect, that he was young and made an error in accepting the discharge.  He states that when his mother died he was needed at home to help his grandmother raise his teenage brother and sister.  He states three things caused him to start acting irrationally; his immaturity at the time, the pressure of receiving numerous messages from the Red Cross about the family problems and acts of vindictiveness done to him by a soldier who did not like him.

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

The applicant enlisted on 3 November 1976 at age 18.  He successfully completed basic training and advanced individual training at Fort Gordon, GA and in April 1977 he received orders transferring him to Panama.

On 3 April 1978, approximately one year after he arrived in Panama, the applicant was convicted by a summary court-martial and found guilty of three specifications of being disrespectful in language to a non-commissioned officer (NCO) and one specification of willfully disobeying a lawful order.  He was sentenced to a forfeiture of $200.00 for one month, to be reduced to the grade of Private E-1, and confinement at hard labor for 30 days at the Retraining Brigade in Fort Riley, KS.

On 12 May 1978, while at Ft Riley, KS, the applicant accepted field grade nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of being disrespectful in language toward an NCO.  His punishment included forfeiture of $92.00 for one month,    14 days of extra duty, and 14 days of restriction to the unit area.

On or about 15 May 1978, the applicant’s commander recommended he be discharged for misconduct under the provisions of Army Regulation 635-200, chapter 14.  Upon notification of his commander’s recommendation for discharge, based on an established pattern of shirking (over 23 incidents), he waived his right to a board of officers, his right to representation by counsel, his right to a medical examination and elected not to present matters in his own behalf. 

On 17 May 1978 he was discharged under other than honorable conditions under the provisions of Army regulation 635-200, chapter 14.  He completed 1 year,     5 months, and 7 days creditable service.

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 a 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.

To support his arguments the applicant submits a letter from the American Red Cross dated 23 October 1984 signed by the executive director.  The letter describes the events and trouble the grandmother had raising two teenagers and the fact that numerous messages were sent to the applicant’s unit.  In a personal statement he tells of his immaturity at the time, about a fight he had with a soldier who continued to provoke him, the hardships of serving overseas and his regrets of his misconduct.

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.  The applicant’s contentions that he was young and immature are without evidence or merit in light of the fact that he demonstrated the capacity to complete basic and advanced training, and served approximately one year without an offense.

2.   Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant waived the opportunity to submit statements in his behalf.  It is improbable that he would have done so if he felt there were errors that caused an unjust discharge.

4.  There is no corroboration in available records nor did the applicant submit evidence to support his contentions of continual harassment by another soldier.

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

___pm___  __jhk ___  ____tl___  DENY APPLICATION

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

INDEX

CASE ID	AR2001056086	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/23	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1978/05/17	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.000	
2.		
3.		
4.		
5.		
6.