MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 November 2001                   
	DOCKET NUMBER:   AR2001061148

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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 (UOTHC) be upgraded.

APPLICANT STATES:  That he completed retraining.  He was asked if he would like to stay in or be discharged.  The type of discharge he would get was not explained to him.  He needs the upgrade to get service-connected disability.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 30 June 1978.  He completed basic training and advanced individual training and was awarded military occupational specialty 19D (Cavalry Scout).

On 8 January 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 13 December 1978 to on or about 5 January 1979.

On 24 July 1979, the applicant was convicted by a special court-martial on three specifications of absenting himself from his place of duty and two specifications of disobeying a lawful order.  He was sentenced to confinement at hard labor for 4 months, to forfeit $279.00 pay for 4 months, and to be reduced to Private, E-1.  He was confined to the U. S. Army Confinement Facility, Mannheim, Germany.  He transferred to the U. S. Army Retraining Brigade, Fort Riley, KS on or about 20 September 1979.  On 28 September 1979, the unexecuted portion of his sentence to confinement at hard labor was suspended until 1 February 1980.

On 6 November 1979, the applicant accepted NJP under Article 15, UCMJ for failing to go his appointed place of duty.

On 7 November 1979, the applicant’s Retraining Brigade unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14 for misconduct – frequent incidents of a discreditable nature.  The commander cited the applicant’s numerous counselings by members of the leadership team and members of the professional staff agencies as the reasons for the proposed separation.

On 13 November 1979, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, and elected not to submit a statement on his behalf.  He acknowledged that he 

understood that, as the result of issuance of a discharge UOTHC, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  

On 19 November 1979, the appropriate authority approved the recommendation and directed the applicant receive a discharge UOTHC.

On 20 November 1979, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He had completed 1 year, 1 month, and 22 days of creditable active service and had 89 days of lost time (23 days AWOL and 66 days confinement).

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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge UOTHC is normally appropriate for a soldier discharged under this chapter.  

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.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  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.  The evidence shows that he was counseled and informed of the consequences of receiving a discharge UOTHC.  Considering his record of service, the characterization of his discharge as UOTHC was and still is appropriate.

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

__jlp___  __mhm___  __rks___  DENY APPLICATION

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

INDEX

CASE ID	AR2001061148	
SUFFIX		
RECON		
DATE BOARDED	20011120	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19791120	
DISCHARGE AUTHORITY	AR 635-200, ch 14 	
DISCHARGE REASON	A64.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.