MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 September 2002                  
	DOCKET NUMBER:   AR2002070362

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 discharge be upgraded to honorable.

APPLICANT STATES:  He asks that the discharge be upgraded for him and for his children's sake.  He has lived since 1977 without any Veteran's benefits.  Now his health is getting worse.  He lives at home and cares for his ageing mother, who had a double bypass surgery.

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

The applicant enlisted on 11 February 1975, completed training as an infantryman and was assigned to Germany.  He was advanced to private first class (E-3) on 4 December 1975.  On 7 October 1976 he was reassigned to Fort Hood, Texas.

He received nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice as follows:  

On 31 March 1976, for assault on and disrespect to a noncommissioned officer (NCO).  

On 20 December 1976, for possession of an ounce of marijuana and communicating a threat to an NCO.

	On 9 February 1977, for willful disobedience of and disrespect to an NCO.

	On 4 March 1977, for absence without leave (AWOL) for less than 1 day.

Between 26 January and 1 March 1977, the applicant was also counseled on seven occasions about his bad attitude, sloppy appearance, poor work habits, failure to follow orders and disobedience.

On 25 February 1977, he was notified of contemplated elimination due to frequent incidents of a discreditable nature with civil or military authorities.  The applicant consulted with counsel and waived his rights to have a board of officers consider his case, to appear before such board and to be represented by counsel and he declined to offer statements in his own behalf.

The separation authority waived any rehabilitation requirements, approved the recommended separation and directed that the applicant be discharged under other than honorable conditions (UOTHC).

On 16 May 1977 the applicant was discharged UOTHC under the provision of Army Regulation 635-200, paragraph 13-5a(1).  

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts.  When separation for unfitness was warranted an undesirable discharge 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.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2.  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.

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

__CLA __  __MHM__  __JTM __  DENY APPLICATION

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

INDEX

CASE ID	AR2002070362	
SUFFIX		
RECON		
DATE BOARDED	20020905	
TYPE OF DISCHARGE	UOTHC, UD	
DATE OF DISCHARGE	19770516	
DISCHARGE AUTHORITY	AR635-200, chapter 13.  .  .  .  .  	
DISCHARGE REASON	A64.00	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.