MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           7 February 2002                  
	DOCKET NUMBER:   AR2001057207

	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. W. W. Osborn. Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Lester Echols		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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 he be reinstated to active duty with back pay.  He states that the Army did not afford him the opportunity to overcome his stated deficiencies.  

APPLICANT STATES:  That he was separated for physical and psychological unfitness and did not receive due process.  He also contends that he was entitled to a board of officers because he was stigmatized by the discharge.  He cites case law that he believes supports his request.  He did not indicate a date of discovery nor provide any rationale as to why the Board should find it in the interest of justice to consider the application.

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

The applicant had previously submitted two applications.  One, dated 22 February 1996, requested that the applicant be separated due to physical disability.  The other, dated 10 March 1997, requested that he be reinstated.  Neither could be completed because his records could not be located.  After his records were located, he was asked, in a 14 June 1998 letter, to specify the exact nature of the relief he was requesting.  The applicant responded, in a 19 June 1998 letter, that he sought reinstatement with back pay.  Notwithstanding that exchange of correspondence, on 28 January 1999, the Board considered the applicant’s earlier request for physical disability separation. Subsequently, the applicant requested that his appeal for reinstatement be reconsidered.  However, it is more appropriate to consider this appeal in a de novo review than to treat the case as though it is a reconsideration.

The applicant enlisted and entered active duty on 13 May 1980.  He completed one site unit training as an infantryman at Fort Benning, Georgia, and was stationed at Fort Campbell, Kentucky, on 11 August 1980.

On 4 December 1980 the applicant was counseled about poor performance.

On 7January 1981 the applicant’s company commander notified him of initiated separation and transfer to the Individual Ready Reserve (IRR) under the provisions of the Expeditious Discharge Program (EDP).  The stated reasons were, “You are unfit both physically and psychologically for military service.  Despite all efforts to improve your job related skills you refuse to show progress.  You lack the motivation and desire to be an average soldier.  Your duty performance is extremely below standards and you require constant supervision to complete even the simplest tasks.  You have never completed any physical training event.  You have refused to participate in training that is basic to your survival on the battlefield.  It would be better for the United States Army and you to terminate your future with the military.”  He was also notified that he had the right to decline this separation, but that if he declined, his subsequent conduct might make him subject to disciplinary or administrative separation.  He was also informed that he had a right to submit a statement in his own behalf.

On 8 January 1981 the applicant was counseled about the proposed separation by a military lawyer, a member of the Judge Advocate General’s Corps.  The applicant acknowledged the proposed separation.  He indicated that he voluntarily accepted the separation and that he would not submit statements in his own behalf.  He also indicated that he would not be allowed to reenlist in the Army for 2 years.

The battalion commander considered the case and directed the applicant’s separation with an honorable discharge.

The applicant was discharged with an honorable characterization of service, on 29 January 1981.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the EDP.  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  The EDP did not apply to Reserve or Army National Guard personnel on any type of active duty training.

On 3 April 1981 the applicant applied to the Army Discharge Review Board (ADRB).  He apparently did not respond to the ADRB’s 25 April 1981 request to keep them informed of any change in address so that a hearing could be scheduled in the requested location.  The ADRB did not review the case.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  There is no available evidence that the applicant was not given adequate opportunity to correct his deficiencies.  The fact that in approximately four months he failed to complete a single physical training event indicates that he was given numerous opportunities to improve.

3.  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

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

__FNE___  __MKP _  ___LE___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057207	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020207	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.	110.03	
3.		
4.		
5.		
6.