MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 November 2002
	DOCKET NUMBER:   AR2002072151

	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 V. O’Connor, Jr.		Chairperson	
	Mr. Thomas B. Redfern		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:  In effect, that his discharge under other than honorable conditions be upgraded to a more favorable discharge.

APPLICANT STATES:  The applicant offers no argument or evidence in support of his application.

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

He enlisted in Cleveland, Ohio, on 15 August 1975, for a period of 3 years, training as an infantryman and assignment to Hawaii (25th Infantry Division).  He completed his training at Fort Polk, Louisiana, and was transferred to Hawaii on 2 February 1976, for duty as an infantryman.  He was advanced to the pay grade of E-3 on 12 October 1976.

On 5 February 1977, nonjudicial punishment (NJP) 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 (suspended for 30 days) and extra duty.

He was advanced to the pay grade of E-4 on 1 May 1977 and on 10 August 1977, NJP was again imposed against him for the wrongful possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and restriction.

On 19 December 1977, NJP was imposed against him for failure to go to his place of duty and for disobeying a lawful order from a noncommissioned officer.  His punishment consisted of restriction for 7 days (suspended for 30 days) and extra duty for 7 days.  On 6 January 1978, the suspended portion of his punishment was vacated.

On 11 May 1978, he was convicted by a special court-martial of being absent without leave (AWOL) from 30 January to 13 February 1978, of three specifications of failure to repair and of one specification of missing movement.  He was sentenced to confinement at hard labor for 60 days and reduction to the pay grade of E-1.  He was transferred to the Army Retraining Brigade (USARB) at Fort Riley, Kansas, on 31 May 1978, to serve his confinement.

On 20 July 1978, NJP was imposed against him for being AWOL from the USARB from 19 July to 20 July 1978.  His punishment consisted of restriction and extra duty for 10 days.

On 1 August 1978, the applicant’s commander initiated a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to involvement in frequent incidents of a discreditable nature with civil and military authorities.  He cited as the basis for his recommendation, the applicant’s disciplinary record, his poor performance and attitude, and his failure to respond to numerous attempts at rehabilitation. 

After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

On 4 August 1978, NJP was imposed against him for overstaying his pass privileges (violation of a lawful order).  His punishment consisted of a forfeiture of pay, extra duty and restriction.

The appropriate authority approved the recommendation for discharge on 8 August 1978 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 10 August 1978, 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 had served 2 years, 9 months and 23 days of total active service and had 63 days of lost time due to AWOL and confinement.

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 offered no argument or evidence to show that his discharge was in error or unjust and the Board finds no evidence in the available records that is sufficiently mitigating to warrant an upgrade of his discharge when compared to his otherwise undistinguished record of service.

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

__tbr____  ___rvo __  __dh____  DENY APPLICATION

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

INDEX

CASE ID	AR2002072151	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/11/07	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/08/10	
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.