MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 September 2003
	DOCKET NUMBER:   AR2003088658

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Frank C. Jones		Member	
	Ms. Barbara J. Ellis		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 be upgraded to an honorable discharge.

APPLICANT STATES:  That during his second enlistment, a warrant officer who had no jurisdiction over his unit entered the headquarters and ordered a few of the soldiers to clean up a break area reserved for officers.  He states that his military occupational specialty was petroleum supply specialist and that he considered being ordered to clean up a break area to be racist and insulting.  He states that out of 15 personnel in the unit, only three individuals were black.  He states that the incident caused him severe mental and spiritual distress and he repeatedly asked his company commander to discharge him from active duty.  He concludes by stating that he was a good soldier and that he had intended to make serving in the Army a career.

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

After being inducted into the Army on 22 August 1968 and completing 1 year, 11 months and 22 days of total active service, he reentered in the Army on 23 January 1979, in the pay grade of E-3.  He successfully completed his training as a petroleum supply specialist and he was promoted to the pay grade of E-4 on 1 November 1979.

The applicant was counseled on five separate occasions between 10 January 1980 and 21 May 1980, for failing to pass his driver's test; two incidents of being late to his place of duty, at which time he refused to pull extra duty; failing to get his haircut after being told to do so; and failing to assist the other soldiers in cleaning the barracks.

On 22 April 1980, the applicant underwent a mental status evaluation.  The attending physician noted his behavior to be normal; that he was fully alert; that he was fully oriented; that his thinking process was clear; that this thought content was normal; and that his memory was good.  The physician determined that he had the mental capacity to understand and to participate in court-martial proceedings.

On 10 June 1980, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order and for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

On 27 June 1980, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, based on apathy, defective attitude, and inability to expand efforts 

constructively.  The commander cited his failure to respond to counseling, his attitude, his duty performance and his personal conduct as a basis for the recommendation for discharge.  The applicant acknowledged receipt of the notification and after consulting with counsel, he waived his rights and he opted not to appear before a board of officers or to submit a statement in his own behalf.

The appropriate authority approved the recommendation for discharge on15 July 1980.  Accordingly, on 22 July 1980, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, based on apathy, defective attitude, and inability to expand efforts constructively.  He had completed 3 years, 5 months and18 days of total active service and he was furnished a General Discharge Certificate.

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 13, then in effect, provided the policy and outlined the procedures for separating individuals for unsuitability, and provided, in pertinent part, that commanders would separate a member under this chapter when, in the commander’s judgment, the member would not develop sufficiently to participate in further training and/or become a satisfactory soldier.  

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, there is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice.  The record does show that he was counseled on numerous occasions and he had NJP imposed against him as a result of his acts of indiscipline and a general discharge was more than appropriate as his service was not totally honorable.

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

__fcj____  __bje____  ___rvo __  DENY APPLICATION

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

INDEX

CASE ID	AR2003088658	
SUFFIX		
RECON		
DATE BOARDED	2003/09/04	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1980/07/22	
DISCHARGE AUTHORITY	AR 635-200, CH 13	
DISCHARGE REASON	547	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  560	144.4300/APATHY	
2.		
3.		
4.		
5.		
6.