MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 August 2002
	DOCKET NUMBER:   AR2002072054

	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. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Donald P. Hupman		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 a more favorable discharge.

APPLICANT STATES:  That he has changed his behavior, has become a responsible citizen and desires to have his discharge upgraded.

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

He enlisted on 30 August 1976, for a period of 3 years and training as a food service specialist.  He completed his training and served in both Korea and Fort Hood, Texas, before he was advanced to the pay grade of E-4 on 3 March 1978. 

On 17 March 1980, while stationed at Fort Hood, he reenlisted for a period of 3 years and assignment back to Korea.  He was promoted to the pay grade of   E-5 on 13 May 1980.  Nonjudicial punishment was imposed against him on two occasions for failure to go to his place of duty.

He was transferred to Korea on 23 October 1980 and on 21 July 1981, nonjudicial punishment was imposed against him for stealing food from the dining facility.  His punishment consisted of a reduction to the pay grade of E-4 (suspended for 180 days) and a forfeiture of pay.  The suspended punishment was vacated on 14 August 1981.

On 5 September 1981, he was convicted by a special court-martial of five specifications of failure to go to his place of duty, being absent without leave (AWOL) from 14 August to 16 August 1981, disobeying a lawful order from a commissioned officer, disobeying a lawful order from a senior noncommissioned officer, and the wrongful possession of an unauthorized liberty pass.  He was sentenced to confinement at hard labor for 30 days and a reduction to the pay grade of E-1.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, on 17 September 1981, to serve his confinement.

On 6 October 1981, nonjudicial punishment was imposed against him for the wrongful possession of marijuana.  His punishment consisted of a forfeiture of pay, extra duty and restriction. 

On 9 November 1981, the applicant’s commander notified him that he was recommending that he be discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to his frequent involvement in incidents of a discreditable nature with civil or military authorities.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

The commander initiated the recommendation for discharge and cited the applicant’s disciplinary record and his failure to respond to numerous counseling sessions and rehabilitation efforts by the staff of the Retraining Brigade.  He also provided an in-depth listing of the applicant’s offenses while at the Retraining Brigade, which included multiple incidents of disobeying lawful orders, failure to repair, unsatisfactory behavior, illegal possession of marijuana and alcohol, security violations and failure to maintain his living area and personal appearance.  He further indicated that the applicant demonstrated little desire to return to duty and his failure to react constructively to the rehabilitation program was indicative that he should not be retained in the service.

The appropriate authority approved the recommendation for discharge on 18 November 1981 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 24 November 1981, under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 5 years, 1 month and 29 days of total active service and had 26 days of lost time due to AWOL and imprisonment.

There is no evidence in the available records to show 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 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, commission of a serious offense, frequent involvement in incidents of a discreditable nature with civil or military authorities, 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 have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the circumstances in his case.

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

___ls  ___  __pm___  __dh____  DENY APPLICATION

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

INDEX

CASE ID	AR2002072054	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/06	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1981/11/24	
DISCHARGE AUTHORITY	AR635-200/ch14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.600/a60.00	
2.		
3.		
4.		
5.		
6.