MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 September 2002
	DOCKET NUMBER:   AR2002069648

	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. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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 honorable.

APPLICANT STATES:  That he was told by the recruiting officer that as long as the United States was not at war, soldiers could have their dependents with them; however, after serving 1 ½ years, he was told that he would have to go to Korea, to a dependent restricted assignment.  He goes on to state that he considered this to be a breach of contract when the recruiter lied to him, so he quit.   

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

The applicant enlisted in Dallas, Texas, on 21 January 1974, for a period of 3 years, assignment to Fort Hood, Texas and training as a wheel vehicle mechanic.

He completed his training at Fort Leonard Wood, Missouri, and was transferred to Fort Hood on 6 April 1974.  He was advanced to the pay grade of E-2 on 21 May 1974.

On 26 July 1974, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.  His punishment consisted of extra duty for 7 days.

On 7 February 1975, NJP was imposed against him for being absent without leave (AWOL) from 3 February to 4 February 1975.  His punishment consisted of extra duty, a forfeiture of pay (suspended for 30 days) and restriction (suspended for 30 days). 

On 11 April 1975, NJP was imposed against him for being AWOL from 7 April to 8 April 1975.  His punishment consisted of a forfeiture of pay and restriction

On 14 April 1975, NJP was imposed against him for being AWOL from 24 March to 25 March 1975.  His punishment consisted of a forfeiture of pay and extra duty.

On 8 May 1975, NJP was imposed against him for being AWOL from 21 April to 23 April 1975 and for failure to go to his place of duty on 28 April 1975.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 90 days), a forfeiture of pay and extra duty.

On 30 May 1975, NJP was imposed against him for being AWOL from 23 May to 27 May 1975.  His punishment consisted of a forfeiture of pay and extra duty (both suspended for 30 days).

On 9 July 1975, after having been rehabilitatively transferred to another battery, the applicant’s commander initiated a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-200, chapter 13 for unfitness based on his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He cites as the basis for his recommendation, the applicant’s disciplinary record and his failure to respond to numerous counseling sessions from all levels of his chain of command.

On 16 July 1975, 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-1 and extra duty (suspended for 30 days).

After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved the recommendation for discharge on 20 August 1975 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 11 September 1975, under the provisions of Army Regulation 635-200, chapter 13 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 1 year, 6 months and 13 days of total active service and had 39 days of lost time due to AWOL.

At the time of his discharge he was informed in writing of the procedures to apply to the Army Discharge Review Board within the 15-year statute of limitations of that board.  However, there is no indication that he ever did so.

A review of his enlistment contract also shows that he acknowledged in writing that all promises made to him were done so in writing on his contract.  He also signed a statement of understanding indicating that he understood that his enlistment contract carried no promise whatsoever relative to furnishing transportation for dependents to overseas commands or to the furnishing of family quarters.  Additionally, there is no evidence in his records to show that orders were ever published reassigning him to Korea or any overseas area.

Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual could be found unfit for various types of misconduct that included frequent incidents of a discreditable nature with military authorities.  An undesirable discharge was normally considered appropriate and there has never been an automatic provision for upgrade of such a discharge.

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 under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board and appear to be without merit.  There is no evidence that his contract was breached.  Additionally, the applicant’s pattern of misconduct began within 3 months of his arrival at Fort Hood and continued until his discharge.  Accordingly, the Board finds that his undistinguished record of service during such a short time is properly reflected by the discharge he was issued at the time.

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

__js ____  __wdp  __  __dh____  DENY APPLICATION

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

INDEX

CASE ID	AR2002069648	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/12	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/09/11	
DISCHARGE AUTHORITY	AR635-200/CH13	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  592	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.