MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 April 2003                   
	DOCKET NUMBER:   AR2003084702

	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. Luis Almodova		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Harry B. Oberg		Member	
	Mr. Ronald J. Weaver		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, to have a characterization of service added to his DD Form 214, Report of Separation from Active Duty.

APPLICANT STATES:  In effect, that he was honest with his recruiter and was mislead concerning a minor petty theft as a juvenile.  The recruiter instructed him to have it sealed.  Counsel, during court, informed him that his discharge was a general under honorable conditions, lack of jurisdiction, but it does not appear on the DD Form 214.  He adds that he was young and easily discouraged.

In support of his application, the applicant submits a copy of his DD Form 214 and a copy of a GSA (General Services Administration) Form 6941, Response to Request for Separation Documents/Information.

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

The applicant enlisted in the Army for 4 years on 25 February 1976 with guaranteed training and assignment in the military occupational specialty (MOS) 05E, Voice Radio Operator.  On the date of his enlistment, the applicant was over 18 years of age.  He completed basic combat training at Fort Jackson, South Carolina, and his advanced individual training at Fort Gordon, Georgia.  He was awarded the MOS 05E on completion of his training.

The applicant’s records show that the highest rank and pay grade that he attained was Private, E-2.  He was promoted to the rank and pay grade, Private, E-2, on 25 June 1976.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

The applicant’s records show that the applicant was counseled 8 times on diverse dates between 2 June and 2 August 1976 for a variety of reasons (i.e., sleeping on guard with his radio out; failing to repair due to his inability related to his drinking; failing to remain on his guard post; failing to sign in with the charge of quarters as ordered; leaving the company area while on restriction to the company area; for losing his identification card, meal card, and wallet while he was drinking; for failing to repair because he lost his keys; failing to read the bulletin board and missing guard because of this failure and being in the custody of civilian law enforcement officials for being drunk in public).

The applicant's records also show that he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 
2 August 1976 for failing to go at the time prescribed to his appointed place of 

duty, Remedial Training, at 1150 hours on 29 July 1976.  His punishment was a forfeiture of $75.00 ($50.00 was suspended for 30 days), 10 days restriction and 10 days extra duty.  The applicant did not appeal the punishment.

The applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, on 2 September 1976, for absenting himself from his appointed place of duty, the Dining Facility, at 0500 hours on 1 September 1976.  His punishment was a forfeiture of $84.00 for one month.  The applicant appealed the punishment but the record remains silent as to the disposition of the appeal.

The applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, on 3 November 1976, for failing to go at the time prescribed (1200-1400; 2000-2200 hours, 31 October 1976 and 0400-0600 hours, 1 November 1976), to his appointed place of duty, Barracks Guard.  His punishment was a reduction to the rank and pay grade, Private, E-1; forfeiture of $97.00 for one month, suspended for 30 days; and to perform extra duty for 7 days.  The applicant did not appeal the punishment.

On 28 March 1977, the applicant received a Letter of Admonition from the Commander, 101st Airborne Division, Fort Campbell, Kentucky, for driving while intoxicated.  The letter was issued as an administrative action and not punishment under the UCMJ.  The letter was referred to the applicant for acknowledgement and for rebuttal.  The applicant chose to not make a statement on 4 April 1977, and the Commander directed that the letter be filed in the applicant's Official Military Personnel File (OMPF) on 18 April 1977.

On 26 April 1977, the applicant was arraigned for trial for violation of several Articles of the UCMJ to include, Article 91, insubordinate conduct towards a warrant officer, noncommissioned officer, or petty officer (1 charge and 
2 specifications); Article 92, failure to obey an order or regulation (2 charges and 2 specifications); and Article 111, drunken or reckless driving (1 charge and 
1 specification).  On 26 April 1977, the Military Judge dismissed all charges and specifications on the grounds that the court lacked jurisdiction to hear the case.

Item 40, Involvement with Police or Judicial Authorities, of the DD Form 1966, Application for Enlistment – Armed Forces of the United States, specifically states:

"Your answers to the following questions will be verified with the Federal Bureau of Investigation (FBI) and other agencies, to determine any previous records of arrest or conviction or juvenile court adjudications.  If you conceal such records at this time, you may, upon enlistment, be 

subject to disciplinary action under the Uniform Code of Military Justice and/or discharge from the military service with other than an honorable discharge."

Questions to which an applicant for enlistment was required to respond were as follows:

"a.  Have you ever been arrested, charged, cited, or held by Federal, State, or other law enforcement or juvenile authorities regardless of whether the citation or charge was dropped or dismissed or you were found not guilty?

b.  As a result of being arrested, charged or cited, or held by law enforcement or juvenile authorities, have you ever been convicted, fined by or forfeited bond to a Federal, State, or other judicial authority or adjudicated a youthful offender or juvenile delinquent regardless of whether the record in your case has been 'sealed' or otherwise stricken from the court record?

c.  Have you ever been detained, held in, or served time in, any jail or prison, or reform or industrial school or any juvenile facility or institution under the jurisdiction of any City, County, State, Federal or foreign country?

d.  Have you ever been awarded, or are you now under suspended sentence, parole, or probation or awaiting any action on charges against you?

e.  Have you been released from parole, probation, juvenile supervision, or given a suspended sentence or relieved of charges pending condition that you apply for or enlist in the Armed Forces?

f.  Are you now involved in or a party to or connected with any court action or civil suit?" 

To each of the above questions, the applicant answered, "no."  The applicant signed the DD Form 1966, in Item 42c., Signature of Applicant.  The applicant's signature was also a certification and response to the following:

"By applicant:  I understand that the armed forces representative who will accept my enlistment does so in reliance on the information provided by me in this document; that if any of the information is knowingly false or 

incorrect, I may be prosecuted under Federal, Civilian, or Military Law or subject to administrative separation proceedings, and in either instance, I may receive a less than honorable discharge which could affect my future employment opportunities.  I certify that the information given by me in this document is true, complete, and correct to the best of my knowledge and belief."

Documents related to the administrative release from the custody and control of the Army of the applicant, i.e., the report of investigation and the commander's recommendation, are not on file in the applicant's service personnel records; however, on 2 May 1977, the Military Personnel Center (MILPERCEN), Alexandria, Virginia, responded to a message that had been sent to that headquarters about the applicant by the Commander, 101st Airborne Division.  In its message response, Subject:  Lack of Jurisdiction, US v [the applicant], the MILPERCEN approved the release of the applicant from the custody and control of the Army.

The applicant was released from the custody and control of the Army on 13 May 1977 in the rank and pay grade, Private, E-2, under the provision of Army Regulation 635-200, Paragraph 5-12, with a separation program designator, MDN (Lack of Jurisdiction).  He was credited with 1 year, 2 months and 19 days service on the date of his release.  The applicant's signature appears on the 
DD Form 214 and indicates that he reviewed the form and accepted the information as being correct to the best of his knowledge.

There is no evidence that the applicant applied to the Army Discharge Review Board for a characterization of his service or issuance of a discharge certificate within that board's 15-year statute of limitations.

On request for a copy of his DD Form 214 from the National Personnel Records Center (NPRC), a copy was sent to him and in addition, an explanation why his service was uncharacterized.  In the GSA Form 6941, the NPRC also advised the applicant that, in effect, where an individual feels that an error or injustice exists that they may apply to this Board for a review of the case.

AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-12 of that regulation provided, in pertinent part, that the discharge or release of an individual from the Army may be ordered by a U.S. Court or judge thereof.  Procedurally, the officer upon whom the writ is served, will notify The Judge Advocate General and The Adjutant General who will take appropriate action, to direct the discharge, release from active military service, or release from custody and control of the Army of the individual concerned.

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 release from active duty was accomplished in compliance with applicable regulations with no indication of procedural error(s) that would tend to jeopardize his rights.  

2.  Notwithstanding the absence of the report of investigation and the commander's recommendation, regularity of Government operations is presumed in the release of the applicant from the custody and control of the Army.

3.  The evidence of record shows that officials at the MILPERCEN gave the authority for the release of the applicant from the custody and control of the Army under the provisions of Army Regulation 635-200, paragraph 5-12, Lack of Jurisdiction.

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

__wtm___  __hbo___  __rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084702	
SUFFIX		
RECON		
DATE BOARDED	20030417	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	19750513	
DISCHARGE AUTHORITY	AR 635-200, Chapter 5	
DISCHARGE REASON	A09.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.	144.0400	
3.	144.0900	
4.		
5.		
6.