MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 August 2002
	DOCKET NUMBER:   AR2002072029

	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. Raymond J. Wagner		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret V. Thompson		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 a more favorable discharge.

APPLICANT STATES:  In effect, that he was halfway finished with his enlistment when he was unjustly discharged under other than honorable conditions.  He further states that he tried to serve but his ability to serve was impaired by the racial discrimination, unfair treatment and prejudice that he experienced.  He also believes that the punishment was too harsh and much worse than others received.  He goes on to state that his youth and immaturity at the time, coupled with the lack of a leader with the skills to handle his problems, his ability to make good decisions was impaired.  He also states that he was convicted by a special court-martial for an offense that was fabricated and one in which he would not admit to doing because he was not guilty.  He continues by stating that once he was released from confinement, there were no other incidents of misconduct or insubordination, yet he had been labeled as a misfit and was unjustly discharged. He continues by stating that he has fathered three sons and strives to model the kind of character that is not a criminal, but one of good character.  He also states that for over 20 years he has worked as a counselor for all diverse age groups through very trying times and he asks the Board to consider his post-service accomplishments and grant him an upgrade of his discharge.  In support of his application he submits six third party letters of support.  

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

He was born on 2 July 1955 and enlisted in Fayetteville, North Carolina, on 5 December 1974, for a period of 3 years, training as a clerk typist and assignment to the Combat Development Experimentation Command (CDEC) at Fort Ord, California.  He successfully completed his training and was transferred to the CDEC on 24 April 1974, for duty as a clerk typist.

On 20 August 1975, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty (shower room detail).  His punishment consisted of a forfeiture of pay, extra duty and restriction.  He appealed the punishment to the battalion commander and the battalion commander suspended the forfeiture of pay for 90 days on 16 October 1975.

However, on 18 December 1975, NJP was again imposed against him for the wrongful possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.  He appealed the punishment and his appeal was denied.

On 3 February 1976, NJP was imposed against him again for the wrongful possession of marijuana.  His punishment consisted of a forfeiture of pay.  He did not appeal the punishment.

On 24 March 1976, he was convicted by a special court-martial of disobeying a lawful order from a senior noncommissioned officer to be at ease and of communicating a threat to “get all the blacks together and tear this company up.” He was sentenced to confinement at hard labor for 65 days and a forfeiture of pay. 

On 16 May 1976, the applicant’s commander notified him that he was initiating a recommendation to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for misconduct based on his frequent involvement in incidents of a discreditable nature with civil and military authorities.  After consulting with counsel, the applicant elected to waive his rights and to submit a statement in his own behalf in which he requested that he be issued an honorable discharge.

The commander initiated the recommendation for discharge on 27 May 1976, citing the applicant’s disciplinary record and his resistance to all attempts at rehabilitation.  He indicated that the applicant had shown through his pattern of misconduct that he lacked the motivation and desire to be a good soldier.

The appropriate authority (a major general) approved the recommendation for discharge on 24 June 1976 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 9 July 1976, under the provisions of Army Regulation 635-200, chapter 13, for misconduct due to his involvement in frequent incidents of a discreditable nature with civil and military authorities.  He had served 1 year, 7 months and 5 days of total active service and had 65 days of lost time due to confinement.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 29 August 1978.  He asserted at that time that he had been unjustly and falsely accused of an offense for which he was convicted by a court-martial, which affected the way he served from that point on.  The ADRB reviewed his records and voted unanimously to deny his request.

He again applied to the ADRB on 16 July 1980 and requested that he be granted a personal appearance before that board.  He asserted at that time that because he was denied the opportunity to further his education, his immaturity caused him to rebel and engage in anti-social behavior.  He asserted that he had matured more and was then willing to admit that he was largely responsible for what happened to him and requested that he not continue to be punished for the mistakes of his youth.  The ADRB granted him a personal appearance before that board and the applicant failed to show for his hearing.  His case was closed without further action.

The six supporting third party statements submitted by the applicant with his application are from employers and fellow employees who all attest that he is a good worker and person. 

Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for separating enlisted personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and 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.

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.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contentions and supporting documents have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his otherwise undistinguished record of service during such a short period of time.

4.  Additionally, the Board finds the applicant’s contention that he was subjected to prejudice and discrimination is unsupported by both the evidence submitted with his application as well as the evidence of record.

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

___mvt __  __le ____  __rjw ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072029	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/08	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1976/07/09	
DISCHARGE AUTHORITY	AR635-200/CH13	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.