MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 September 2001
	DOCKET NUMBER:   AR2001058291

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he was unaware of the discharge he received because he was intoxicated on the day of his discharge and did not read his separation document (DD Form 214).

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

He enlisted on 29 January 1979 for a period of 3 years, training as an infantry indirect fire crewman and assignment to the 1st Infantry Division.  He successfully completed his training and was transferred to Fort Riley, Kansas on 11 May 1979.

On 16 November 1979, nonjudicial punishment (NJP) was imposed against him for possession of marijuana.  His punishment consisted of correctional custody for 7 days and a forfeiture of pay.

On 12 February 1980, NJP was imposed against him for being absent without leave (AWOL) from 17 December to 27 December 1979.  His punishment consisted of a forfeiture of pay and 30 days of correctional custody (suspended until 10 May 1980).

On 10 June 1980, NJP was imposed against him for failure to go to his place of duty and disobeying a lawful order from his first sergeant.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

The actual facts and circumstances surrounding the applicant’s administrative separation are not present in the available records.  However, his records do contain a duly constituted report of separation signed by the applicant which shows that he was discharged under other than honorable conditions on 21 August 1980, under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 6 months, and 13 days of total active service and had 10 days of lost time due to AWOL.

There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

There is evidence in the available records to show that in 1991 and 1997, while incarcerated in correctional institutions in Tennessee, he requested copies of his military records from the National Personnel Records Center.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established the policy and prescribes procedures for separating members for various types of misconduct that included frequent involvement in incidents of a discreditable nature with civil or military authorities.  It provided that action would be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.

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 to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The Board finds, after reviewing the evidence submitted by the applicant and the available evidence of record, that there are no mitigating circumstances that warrant an upgrade of his discharge when his entire record of otherwise undistinguished service is taken into consideration.

4.  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.

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

__rvo ___  ___teo __  ___ena__  DENY APPLICATION

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

INDEX

CASE ID	AR2001058291	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	1980/08/21	
DISCHARGE AUTHORITY	AR635-200/CH14	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.