MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 June 2002
	DOCKET NUMBER:   AR2002070476

	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. Elzey J. Arledge, Jr.		Member	
	Mr. Thomas Lanyi		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 be upgraded.

APPLICANT STATES:  That the reason he was given a discharge under other than honorable conditions was so that it could be upgraded 6 months after his discharge.  He contends that he was promised that if he accepted the discharge, it would be upgraded after 6 months, so that he would be eligible for benefits and he desires to have what was promised to him.

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

He enlisted in Albuquerque, New Mexico, on 20 September 1977, for a period of 3 years and training as an improved hawk launcher and mechanical systems repairman.  He completed his training and was transferred to Fort Bliss, Texas, on 10 August 1978.  He was advanced to the pay grade of E-3 on 20 September 1978.

On 27 October 1978, the applicant was driving while intoxicated and was involved in an incident in which the military police engaged in a pursuit of the applicant on Fort Bliss, after he had ran a stop sign.  He avoided the police for approximately 2 miles until a military policeman stood in the road at the gate with a pistol to stop him.  The applicant refused to take the intoxilyzer test and was arrested.  He was released to his first sergeant the following day.  The record is silent as to any punishment imposed.

On 6 December 1978, nonjudicial punishment 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, a forfeiture of pay and extra duty.

On 7 June 1979, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 4 June to 6 June 1979.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 11 June 1979, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to his involvement in frequent incidents of a discreditable nature with civil and military authorities.  He cited as the basis for his recommendation, the applicant’s repeated failure to respond to numerous counseling sessions, his disciplinary record, and at least 16 incidents of failure to repair and poor appearance.

After consulting with counsel, the applicant waived his rights and elected to submit a statement in his own behalf.  He indicated that he did not believe that 

his overall conduct warranted a bad discharge.  He also acknowledged that he understood the implications attached to a discharge under other than honorable conditions and understood that he would be ineligible for most or all benefits administered under State and Federal laws.

The appropriate authority (a brigadier general) approved the recommendation on 6 July 1979 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 17 July 1979, under the provisions of Army Regulation 635-200, chapter 14, for misconduct involving frequent incidents of a discreditable nature with civil and military authorities.  He had served 1 year, 9 months and 26 days of total active service and had 2 days of lost time due to AWOL.

There is no indication in the available records which shows that the applicant ever applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  Additionally, there was not then, nor is there now, any provisions for an automatic 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.  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.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant has failed to convince the Board through the evidence submitted with his application or the evidence of record that his discharge was unjust and should be upgraded.  Additionally, there is no evidence to show that he was informed that his discharge would be upgraded within 6 months of his discharge.

4.  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 ___  ___eja___  ___tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070476	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/25	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1979/07/17	
DISCHARGE AUTHORITY	AR635-200/CH14	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.