MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 September 2001
	DOCKET NUMBER:   AR2001059622

	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. William Blakely		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:  In effect, that his records be corrected to restore his rank and pay grade to specialist four/E-4 (SP4/E-4) and that he be issued a new separation document reflecting this change.  

APPLICANT STATES:  In effect, that family problems impaired his ability to serve in the Army.  He states that it is not right for him to continue to suffer from the mistakes he made such a long time ago.  He further states that he is not asking for money, only to correct his records to reflect his rank was SP4.

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

On 29 April 1966, he enlisted in the Army for 3 years and on 22 July 1968, he reenlisted for an additional 3 years.  He was trained and served in military occupation specialty (MOS) 63C (Track Vehicle Mechanic) and his awards included the Vietnam Service Medal, Republic of Vietnam Campaign Medal with 60 Device, and National Defense Service Medal. 

The applicant’s record confirms the highest rank he attained while serving on active duty was SP4/E-4.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.  On 2 October 1968, he accepted NJP for failure to report to reveille.  On 6 December 1968, he again accepted NJP for  disobeying a lawful order from a non-commissioned officer, disobeying a lawful order from a warrant officer, and for failure to go to his appointed placed of duty.  His punishment for these offenses included a suspended reduction to the rank and pay grade of private/E-1 which was later vacated for cause.

On 23 January 1969, the applicant was notified by his commander that separation action was being initiated to eliminate him from the Army under the provisions of Army Regulation 635-212 for unsuitability.  The reason cited for the action was that the applicant suffered from a character and behavior disorder that steamed from the constant burden of caring for his family, which prevented him from adjusting to military life.  He acknowledged receipt of the separation action and after being advised of his rights, he waived his right to consulting counsel and elected not to submit a statement in his own behalf.

On 17 February 1969, the separation action was approved by the appropriate authority who directed the applicant receive an honorable discharge.  On 
24 February 1969, he was discharged accordingly, in the rank and pay grade of private/E-1, after having served a total of 2 years, 9 months, and 26 days of active military service.  

Army Regulation 635-212, in effect at the time, sets forth the basic authority for the separation of enlisted personnel who are found unfit or unsuitable for further military service.  Individuals separated by reason of unsuitability were furnished an honorable or general discharge as warranted by the military record.

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 Board notes the applicant’s contention that his misconduct that resulted in his acceptance of NJP and his reduction was caused by his family problems and that he should not suffer from the stigma of the reduction action for a mistake he made so long ago.  However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.  

2.  The evidence of record shows that the commander imposing the NJP that resulted in the applicant’s reduction took into account his family problems and that this factor resulted in the commander initially suspending the reduction portion of the punishment imposed.  However, even after this act of leniency, the applicant committed another act of misconduct which resulted in the suspended reduction being vacated and in his reduction in rank.  Therefore, the Board finds the his family situation was not sufficiently mitigating to excuse the misconduct that resulted in his reduction.

3.  Further, the record shows that the applicant was separated based on a character and behavior disorder with an honorable discharge which was primarily based on his failure to cope with his family problems.  In the opinion of the Board, he received an honorable discharge as a result of the chain of command taking into account his family problems and viewing this factor as mitigating in the discharge process.  The Board finds this leniency was appropriate based on his family situation but that this same factor provides an insufficient basis to reinstate his rank.

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___  __ENA__  __TEO__    DENY APPLICATION

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

INDEX

CASE ID	AR2001059662	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	106.0010	
2.		
3.		
4.		
5.		
6.