MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            2 July 2002
	DOCKET NUMBER:   AR2002068699

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Raymond J. Wagner		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 undesirable discharge be upgraded to at least a general discharge.

APPLICANT STATES:  That he was young at the time he enlisted, was harassed and made a lot of mistakes.  He states that he had a profile against loud noises, had a hearing loss, and now cannot keep a job because of his discharge.  He further states that he had a heart attack/stroke about 7 years ago and now needs help.

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

He enlisted with parental consent on 19 July 1968, for a period of 3 years.  He was transferred to Fort Benning, Georgia, to undergo his basic combat training (BCT).  

On 10 September 1968, nonjudicial punishment (NJP) was imposed against him for dereliction in the performance of his duties as a sentinel of the guard.  His punishment consisted of a forfeiture of pay, extra duty and restriction.  He completed his BCT and was transferred to Fort McClellan, Alabama, to undergo his advanced individual training (AIT). 

He successfully completed his AIT and was transferred to Fort Hood, Texas, on 20 December 1968, for duty as a rifleman.  He was advanced to the pay grade of E-3 on 7 February 1969, and on 24 February 1969, he was issued a permanent physical profile for hearing loss, which precluded his frequent exposure to loud noises or firing of weapons.

On 2 July 1969, NJP was imposed against him for failure to obey a lawful order from a commissioned officer, to get a haircut.  His punishment consisted of extra duty and restriction.

On 5 September 1969, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2, extra duty and restriction.

His records also show that NJP was again imposed against him on 29 September 1969, for being absent without leave (AWOL) from 22 September to 23 September 1969.  His punishment consisted of a reduction to the pay grade of E-1.

On 28 January 1970, he was convicted by a special court-martial of being AWOL from 4 November to 12 November 1969.  He was sentenced to confinement at hard labor for 8 days (suspended for 45 days), hard labor without confinement for 22 days, reduction to the pay grade of E-1, a forfeiture of pay and restriction.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214), signed by the applicant, which shows that he was discharged under other than honorable conditions on 6 March 1970, under the provisions of Army Regulation 635-206, for misconduct based on his being convicted or adjudged a juvenile offender by a civil court during his current term of military service.  He had served 1 year, 7 months and 6 days of total active service and had 16 days of lost time due to AWOL and confinement. 

There is no indication 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.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It provided, in pertinent part, that members would be processed for separation for under that regulation for misconduct, AWOL, Desertion, fraudulent entry and conviction by civil authorities.  An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  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, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is 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 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.

2.  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 violations or procedural errors, which would tend to jeopardize his rights.

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

4.  The applicant’s contentions have been noted by the Board.  However, given his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge. 

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

___kak__  ___ao___  ___rjw  __  DENY APPLICATION

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

INDEX

CASE ID	AR2002068699	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/02	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/03/06	
DISCHARGE AUTHORITY	AR635-206 CIV CONV	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  627	144.6100/A61.00	
2.		
3.		
4.		
5.		
6.