MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           17 October 2002
	DOCKET NUMBER:   AR2002073093

	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. Antoinette E Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Richard T. Dunbar		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 general discharge (GD) under honorable conditions be upgraded to an honorable.  

APPLICANT STATES:  Nothing further and submits no additional evidence in support of his case. 

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

On 17 July 1979, he enlisted in the Regular Army for a period of 3 years.  He completed his military training and was awarded military occupational specialty 
(MOS) 36K10 (Tactical Wire Operations Specialist) at Fort Gordon, Georgia on 
18 October 1979.  He was then transferred to Fort Polk, Louisiana for duty.  

On 15 December 1979, the applicant, received nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code Military Justice, for missing movement.  His punishment included reduction to the pay grade of E-1, forfeiture of $200.00 pay, suspended for 45 days and extra duty for 30 days commencing on 4 January 1980. 

On 28 January 1980, he received his second NJP for being absent without leave (AWOL) from 3 to 23 January 1980.  His punishment included forfeiture of $200.00 and extra duty for a period of 30 days, not to exceed a total of 
2 hours per day.  

On the same day his unit commander initiated action to separate the applicant with a GD under the provisions of Army Regulation 635-200, paragraph 5-31, the Expeditious Discharge Program (EDP).  The commander cited his quitter attitude, hostility toward the Army, inability to accept instructions and directions, clearly substandard performance and lack of cooperation with peers and superiors.  

On 29 January 1980, the applicant acknowledged notification of the action, consulted with counsel and voluntarily consented to the discharge.  He submitted no statements in his own behalf and received a medical evaluation, which cleared him for separation.

His Battalion Commander agreed with the recommendation that he be given a general discharge under honorable conditions and further recommended that he not be transferred to the Individual Ready Reserve (IRR) to complete his service obligation.

On 11 February 1980, he was discharged with a general under honorable conditions discharge in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 5-31.  He had completed 6 months and 6 days of creditable active service and 18 days of lost time due to AWOL.

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

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph at the time provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential may be discharged.  It provides for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action becomes necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.   

Under Paragraph 5-31h(1) of this regulation, in pertinent part, for the separation of individuals determined to clearly be substandard performers.  This paragraph also provided for the separation of those individuals who obviously could not adjust to the Army environment, and or those who responded initially but within a short period of time demonstrated that they were incapable of permanent adjustment.  Under this regulation a general or a honorable discharge was considered appropriate.  Further, the regulation then in effect stated that no individual would be given a GD by the separation authority unless the commander initiating the action for separation recommended it and the soldier had the opportunity to receive legal counsel.

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 under the EDP was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The applicant’s substandard record of service fully supported the directed discharge action, as evidenced by his attitude, performance and NJP actions.

2.  The applicant was properly notified of the discharge action.  He acknowledged the notification, his right to legal counsel and he stated that he understood the rights available to him and that he voluntarily consented to the EDP discharge.  He also declined to make a statement in his own behalf. 

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

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 therefore, 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

__JL  ___  ___MVT _  ___RTD _  DENY APPLICATION

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

INDEX

CASE ID	AR2002073093	
SUFFIX		
RECON		
DATE BOARDED	20021017	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1980-02-11	
DISCHARGE AUTHORITY	AR 635-200 PARA 5-31	
DISCHARGE REASON	A24.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	A126.00	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.