MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 September 2002
	DOCKET NUMBER:   AR2002071162

	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. Deyon D. Battle		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 discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

APPLICANT STATES:  In effect, that he asked his company commander if he could report to the hospital dispensary and he went.  He states that while he was there the doctor checked his right ankle and he was put on sick leave for 2 weeks.  He goes on to state that after he was on leave for 3 days he was told to report to work.  He states that he agreed and when he tried to put on his boots he could not tie the laces because his ankle was swollen.  He states that he went to formation anyway and when he was given an order to come to attention he failed to do so.  He further states that he tried to tell his commanding officer that he could not march because of his ankle and the commander said that he was going to jail for disobeying an order.  He states that he asked to be discharged from the Army and the commander said that he would make sure that he was court-martialed and sent to jail.  He concludes by stating that he was court-martialed, sent to jail and discharged under other than honorable conditions.

COUNSEL CONTENDS:  That the applicant’s discharge was too harsh and that the offenses committed by him were relatively minor, in that they did not involve any periods of absences without leave or any other acts that would be considered of a serious nature.  Counsel also contends that since the applicant was convicted by a summary court-martial and since this type of trial is used to exercise justice promptly for relatively minor offenses, it would appear that the discharge authority did not consider the applicant’s offenses as overly serious in nature.

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

On 3 August 1979, he enlisted in the Army in Jacksonville, Florida, for 3 years in the pay grade of E-1.  He successfully completed his training as a radio teletypewriter operator.

He was promoted to the pay grade of E-2 on 3 February 1980 and to pay grade E-3 on 3 August 1980.  On 18 March 1981, he was transferred to Korea and on 1 July 1981, he was promoted to the pay grade of E-4.  He completed 2 years and 6 months of total active service and on 3 February 1982, he reenlisted in the Army for 4 years.

On 9 April 1982, while in Korea, nonjudicial punishment (NJP) was imposed against the applicant for assaulting a civilian, assaulting his senior noncommissioned officer (NCO), wrongfully communicating a threat to his senior NCO, and failing to go to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and restriction for 14 days.

On 15 July 1982, he was convicted by a special court-martial of three incidents of disobeying a lawful order, two incidents of being disrespectful in language and assault.  He was sentenced to a reduction to the pay grade of E-1 and confinement at hard labor for 100 days.

The applicant was counseled on numerous occasions regarding his lack of motivation, poor attitude and performance.  The applicant violated and refused to perform tasks that were assigned to him.  He also was a constant disciplinary problem in that he refused to do what he was told.  He was thoroughly counseled all in the same day by individuals in his chain of command and he was warned that there would be consequences to his actions if he continued to show a lack motivation and poor attitude.  The applicant stated that he did not want to be in the Army and that he wanted a Bad Conduct Discharge just to get out.  He stated that he did not care and that he would do just enough to get by.  He stated that he had problems ever since he entered the Army and just wanted everyone to ignore him.  

He was counseled on 6 October 1982, regarding what would be expected of him while he was in the “A Team”.  His senior NCO noted that during the counseling, he gave the impression that he did not care one way or the other.  The applicant stated that he did not understand why he should address anyone by his or her rank and that he would not do so.  He was informed that he must do as he was required and he refused to comply.

On 15 October 1982, the applicant was notified that charges were pending against him for three specifications of disobeying a lawful order.  After consulting with counsel, he waived his rights and submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  At the time he submitted his request for discharge, he submitted statements in his own behalf indicating that he should be furnished a general discharge because he had successfully completed a 3-year tour of duty in the Army without incident; that he tried to go through his chain of command for a discharge without success; that he had sickness in his family which resulted in his grandfather’s death; that he financial problems; and that he wanted the most and the best out of life, which included college.

The appropriate authority approved his request for discharge on 21 October 1982.  Accordingly, on 9 November 1982, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had completed 3 years and 1 day of total active service.

There is no evidence of record that shows 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 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, 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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The Board has noted the contentions of the applicant and his counsel.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The evidence of record clearly shows that the applicant was counseled on numerous occasions regarding his acts of misconduct.  He stated that he wanted out of the Army and that he was only willing to do just enough to get by.  He stated that he wanted to go to college and that he just wanted his fellow soldiers to ignore him.  He had NJP imposed against him and he was convicted by a special court-martial for his acts of misconduct and considering his numerous acts of indiscipline, it does not appear that the type of discharge that he received was too harsh.

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	AR2002070062	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/12	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/11/09	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000	
2.  708	144.7100	
3.		
4.		
5.		
6.