MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 July 2003
	DOCKET NUMBER:   AR2003087366

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O’Shaughnessy		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 two separate applications, that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That at the time of the alleged sexual assault, he was suffering from a hernia and his testimony was never heard during his 
court-martial.  He states that the only testimony that was heard was that of the alleged victim and her witness.  He states that he has been unjustly accused of a crime and that he has served his country and deserves full benefits.

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

On 29 December 1980, he enlisted in the Army in Jacksonville, Florida, for 3 years in the pay grade of E-3.  He successfully completed his training as a radio teletype operator and he was transferred to Germany.

Nonjudicial punishment (NJP) was imposed against the applicant on 11 May 1981, for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade, restriction and extra duty.

On 13 August 1981, NJP was imposed against him for failure to go to his appointed place of duty, for absenting himself from his appointed place of duty, and for orally communicating insulting language to a female soldier.  His punishment consisted of a reduction in pay grade and extra duty.

The applicant was convicted by a summary court-martial on 18 November 1981, of one specification of being disrespectful in language toward his superior noncommissioned officer (NCO) and of two specifications of disobeying a lawful order.  He was sentenced to a reduction in pay grade and a forfeiture of pay.

On 27 July 1982, NJP was imposed against him for disobeying a lawful order.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

A review of the available records fails to reveal any information regarding a 
court-martial conviction as a result of a sexual assault.

On 11 August 1982, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He acknowledged receipt of the notification on 12 August 1982 and after consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf.

The appropriate authority approved the recommendation for discharge on 19 August 1982.  Accordingly, on 27 August 1982, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 7 months and 7 days of total active service and he had 22 days of lost time due to confinement.

There is no evidence of record that shows 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 prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

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

3.  The Board has noted the applicant’s contentions.  However, the evidence of record clearly shows that he was convicted by a summary court-martial and he had NJP imposed against him on three separate occasions as a result of acts of misconduct.  Considering his numerous acts of indiscipline and the nature of his offenses, it does not appear that his discharge under other than honorable conditions was too severe.

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

__mkp___  __wtm __  __teo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003087366	
SUFFIX		
RECON		
DATE BOARDED	2003/07/29	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/08/27	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  656	144.6400/FREQUENT INCIDENTS	
2.		
3.		
4.		
5.		
6.