MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 August 2002                   
	DOCKET NUMBER:   AR2002070892

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg		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 general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge.

APPLICANT STATES:  That he should receive the same consideration and treatment that the Captain of the USS Greenville received after his submarine sunk the Japanese ship Ehime Maru in waters off of Hawaii.  He adds that media reports indicate that the Navy officer was convicted by a court-martial, but will still receive an honorable discharge and all of his benefits.  He continues that he never assaulted anyone in the Armed Forces; that he was afraid and he trusted his attorney; and that his attorney pressured him into pleading "guilty by association."  He adds that he later learned that his attorney and the trial counsel were working together, taking turns winning cases.

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

That he enlisted in the Regular Army on 13 January 1972 for 3 years.  He completed basic and advanced individual training and he was awarded military occupational specialty (MOS) 64C, Motor Transport Operator.  On 29 June 1972, he was assigned to Germany.

On 28 March 1973, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for twice disobeying a lawful order given by a commissioned officer to leave the dining facility on 26 March 1973.  On the same date, he disobeyed a lawful written order by "soul dapping within the dining facility."  His punishment included reduction from pay grade E-3 to pay grade E-2 and 14 days of extra duty.

On 8 June 1973, the applicant was convicted by a special court-martial for assaulting a noncommissioned officer (E-6) by striking him in the back and chest with his fist and by kicking him in the groin with his foot.  He was sentenced to reduction to pay grade E-1, forfeiture of $200.00 pay per month for 6 months, and to be confined at hard labor for 5 months.  On 9 June 1973, the applicant was placed in military confinement in Germany.  On 5 July 1973, his sentence was approved.  

On 17 July 1973, the applicant was transferred to the US Army Retraining Brigade (USARB), Fort Riley, Kansas.  On 29 August 1973, the unexecuted portion of his sentence, approved on 5 July 1973, was suspended until 7 November 1973.  On the same date, he was released from the USARB and, on 19 September 1973, he was assigned to Fort Campbell, Kentucky for duty. 

On 15 January 1974, while the applicant was assigned to Fort Campbell, NJP was imposed against him for failure to go to his appointed place of duty at the time prescribed on 14 and 15 January 1974.  His punishment included forfeiture of $40.00 pay per month for 1 month and 14 days of extra duty.
On 21 November 1973, the applicant received both a medical examination and mental status evaluation and he was determined to be qualified for separation. 

On 25 January 1974, the applicant's commander notified him that he was being recommended for elimination from the service under the provisions of chapter 13, Army Regulation 635-200 for unsuitability.  He cited the bases for his recommendation were the offenses that have been previously mentioned and that the applicant had communicated a threat twice on 24 January 1974 (the circumstances surrounding the threats are unknown).  

On the same date, the applicant consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to him.  He also indicated that he understood the ramifications of receiving a GD.  He waived the right to have his case considered by a board of officers and declined to submit a statement in his own behalf.  

On that same date, the applicant's commander recommended that the applicant be eliminated from the military.  He stated that the applicant showed no desire to become a productive soldier; that he required constant supervision; and that he could not be relied upon to be at his appointed place of duty.  He believed there were no grounds for disposition of the applicant's case other than elimination from the military due to his attitude towards duty performance and his disregard for regulations.

On an unknown date, the intermediate commander recommended approval.  On 31 January 1974, the appropriate authority waived further counseling and stated that counseling and rehabilitation had been accomplished without success.  He approved the separation recommendation and directed the issuance of a GD.

The applicant's DD Form 214 shows that he was separated on 7 February 1974, under the provisions of chapter 13, Army Regulation 635-200, for unsuitability, with a GD.  He had completed 1 year, 10 months and 4 days of creditable active military service and he had 81 days of lost time due to being in military confinement.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, apathy, or a defective attitude and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member is unfit or unsuitable for further service.  A GD was generally 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.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of the applicant's service is commensurate with his overall record of military service.

3.  The evidence available does not support the applicant's contention that he was coerced or that any attorney that may have been involved with his case engaged in unethical behavior.

4.  Prior to being separated, the applicant was afforded every opportunity to serve honorably.  He was separated not as a result of being court-martialed, but because of his conduct.  He showed little respect for authority and he continuously committed offenses of a discreditable nature.

5.  The applicant's complaint about the Captain of the USS Greenville is not applicable to his situation.  This Board views each case on its individual merits, not on the basis of what a sister Service may have done in a separate, dissimilar case.

6.  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

__mkp___  __cjp___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2002070892	
SUFFIX		
RECON		
DATE BOARDED	20020829	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19740207	
DISCHARGE AUTHORITY	AR635-200, Chap 13	
DISCHARGE REASON	A40.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4000	
2.		
3.		
4.		
5.		
6.