MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          5 September 2002
	DOCKET NUMBER:  AR2002072692

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD). 

APPLICANT STATES:  In effect, that he got into fight in the barracks with two African American soldiers.  The next day he awoke to find himself handcuffed and shackled.  He inquired as to what had happened and was told that he would be court-martialed.  No one ever took into consideration the amount of alcohol that had been consumed by he and his co-workers.  He claims that at the time, there were many discrimination problems, and he was informed by his unit commander that he intended to make an example of him.  He claims that he was treated unfairly and was discriminated against by the Army.  He further states that as a result of these actions that never should have occurred, he has suffered for 27 years of his life, and now feels that an upgrade of his discharge is warranted.  In support of his application, he submits a copy of his separation document (DD Form 214), a Report of Mental Status Evaluation (DA Form 3822), and a Prisoner’s Release Order (DA Form 357).   

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

On 13 September 1972, the applicant entered the Army for a period of 4 years. He was trained and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman), and the highest rank he attained while on active duty was specialist four/E-4.

The applicant’s records reveal no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.  However, it does show a disciplinary history, which includes his conviction by a general court-martial of two specifications of assault and battery, and failure to obey a lawful order.

On 25 May 1975, the applicant was found guilty by a general court-martial of striking a captain, a superior commissioned officer in the execution of his duties; striking a first lieutenant, a superior commissioned officer; disobeying a lawful order from a superior noncommissioned officer; assaulting a private; and wrongfully communicating a threat to a private.  The resultant sentence included a reduction to private/E-1 (PV1), forfeiture of $150.00 pay per month for twelve months, and confinement at hard labor for 12 months.  

On 30 May 1975, the convening authority approved and ordered executed only so much of the sentence that provided for confinement at hard labor of six months, forfeiture of $150.00 pay per month for 6 months, and reduction to the lowest enlisted grade of PV1.  

The applicant’s discharge packet containing the specific facts and circumstances surrounding his discharge processing is not in the record.  However, there is a properly constituted separation document (DD Form 214) on file, which contains the authority and characterization of the applicant’s discharge.

The DD Form 214 confirms that on 22 October 1975, the applicant was administratively discharged with an UD.  The authority for his separation was Army Regulation 635-200, paragraph 13-5a (1), and the reason for his discharge was unfitness, for frequent incidents of a discreditable nature with civil or military authorities.  This separation document also shows that at the time, the applicant had completed total of 2 years, 8 months, and 15 days of creditable active military service and had accrued a total of 145 days of time lost due to confinement.  

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel who are found unfit or unsuitable for further military service.  Paragraph 13-5a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was 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 Board notes the applicant’s contention that his discharge was unjust, but it finds that there is insufficient evidence to support this claim.  In addition, the Board considered the applicant’s claim that he had suffered the consequences of the discharge long enough.  However, it concludes that this factor is not sufficiently mitigating to warrant the requested relief. 

2.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  However, the record does contain a properly constituted DD Form 214 that was authenticated by the applicant with his signature on the date of his separation.  This document contains the authority and reason for his separation.  Therefore, lacking independent evidence to the contrary, the Board presumes government regularity in the discharge process.

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the Board concludes that the applicant’s discharge accurately reflects his overall record of service and was appropriate based on the authority and  reason for his discharge.  Thus, the Board concludes that the requested relief is not warranted.

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

__CLA__  ___MHM___  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002072692	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/05	
TYPE OF DISCHARGE	 UD	
DATE OF DISCHARGE	19751011	
DISCHARGE AUTHORITY	AR635-200. paragraph 13-5(a)1 .  .  .  .  .  	
DISCHARGE REASON	unfitness- frequent involvement of a discreditable nature with authorities.	
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	166.6400	
2.		
3.		
4.		
5.		
6.