MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 July 2003
	DOCKET NUMBER:   AR2003088025

	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:

	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:  That his discharge under other than honorable conditions be upgraded to honorable, or at least a general discharge.

APPLICANT STATES:  In effect, that he has been in and out of prison due to drug and alcohol use since his discharge in 1982 and that he was paroled from prison in 1999 and is finally getting on the right path without the use of mind altering drugs.  He further states that he is being baptized in the Catholic faith and is getting married.  He also states that he is skilled as an electrician and has been working for 4 years.  He continues by stating that he was not absent for 30 days as he was charged and that there were extenuating circumstances in his case.  He would now like to repair the mistakes of his past by having his discharge upgraded.

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

He enlisted on 27 December 1979 for a period of 3 years and training as a telecommunications center operator.  He completed his training and was transferred to Fort Hood, Texas, on 19 May 1980.  He was advanced to the pay grade of E-2 on 27 June 1980. 

On 6 February 1981, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

The applicant's commander also initiated a recommendation to bar him from reenlistment.  He cited as the basis for his recommendation, the applicant's disciplinary record, his failure to respond to repeated counseling sessions and his involvement in incidents of a discreditable nature.  The applicant declined the opportunity to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment. 

On 10 March 1981, NJP was imposed against him for stealing a lighter belonging to another soldier and for violating visitation policies by visiting a female's room.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 11 June 1981, the applicant's commander submitted a recommendation to separate the applicant from the service for unsuitability under the provisions of Army Regulation 635-200, chapter 13.  However, the brigade commander disapproved the request and directed that the applicant be given a rehabilitative transfer.

On 18 November 1981, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 1 October to 30 October 1981.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to undergo his confinement.

On 22 January 1982, the applicant's commander at the Retraining Brigade submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to frequent involvement in incidents of a discreditable nature with military authorities.  He cited the applicant's disciplinary record, poor performance and conduct, failure to respond to numerous counseling sessions and his demonstrated lack of desire to return to duty as the basis for his recommendation. 

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

On 3 February 1982, the appropriate authority approved the recommendation for discharge and directed that he be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 8 February 1982, under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 11 months and 20 days of total active service and had 52 days of lost time due to AWOL and confinement.

There is no evidence in the available records to show that he 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 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, drug abuse, and 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 board has noted the applicant’s contentions; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished 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

_mkp ___  __wtm___  __teo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003088025	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/07/29	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/02/08	
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.