MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 February 2000                  
	DOCKET NUMBER:   AR1999029723

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		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, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).  

APPLICANT STATES:  In effect, that he had a serious problem with drinking and was going through a deep depression because of marital problems when he was processed for discharge, and none of these factors were considered at the time.  In addition, he claims that the full ramifications of the discharge were not explained to him by his commander when he waived his right to an administrative separation board.  He states that he has truly paid a high price for his AWOL and it would not be in anyone’s best interest to continue the stigma associated with this discharge.  The applicant has enclosed a letter of support for his application from the Vietnam Veterans of America, Pheonix Chapter #726, Polk City, Florida. 

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

On 26 January 1973, the applicant enlisted in the Regular Army for 4 years.  He successfully completed basic training at Fort Polk, Louisiana and was assigned to Fort Benning, Georgia to attend advanced individual training (AIT) in military occupational specialty 11B (Infantryman).

The applicant’s record shows that he never advanced beyond the rank of private/E-2 while on active duty and it documents no acts of valor, significant achievement, or service warranting special recognition.  It does, however, reflect an extensive disciplinary history which includes the applicant’s conviction by special court-martial on two separate occasions, and his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ.

On 7 March 1973, while still in AIT, the applicant accepted NJP for being AWOL from 4 to 6 March 1973.  His punishment for this offense was a forfeiture of $70.00 and 14 days of restriction and extra duty.  

On 7 September 1973, the applicant was tried and convicted by special 
court-martial for being AWOL from 15 to 25 July 1973.  His sentence included a reduction in rank to private/E-1; 30 days of hard labor without confinement; and a forfeiture of $50.00 per month for 2 months. 

On 20 November 1973, the applicant was again tried and convicted by special court-martial.  This time for being AWOL from 18 October to 4 November 1973.  The resultant sentence included confinement at hard labor for 6 months and a forfeiture of $70.00 per month for 6 months.  On 28 November 1973, the applicant was assigned to the United States Army Retraining Brigade (USARB) at Fort Riley, Kansas in order to serve his sentence and to be retrained.  

On 28 December 1973, the applicant’s unit commander at the USARB requested that the applicant be discharged under the provisions of Chapter 13, 
Army Regulation 635-200 for unfitness because of his frequent incidents of a discreditable nature.  The unit commander stated that an unsuitability discharge would not be appropriate because the applicant’s behavior was not due to his inability to satisfactorily perform his duties within the meaning of unsuitability.  

The unit commander cited, as his reasons for taking the separation action, the applicant’s disciplinary history and his failure to respond to the effort of personnel at the USARB to provide correctional training and treatment necessary to return him to duty as a well trained soldier.  However, the commander points out that the applicant’s actions at the USARB precluded accomplishment of that objective and he commented that the applicant’s primary objective was to leave the military by any means.  He also stated that the applicant had failed to respond to the extensive counseling provided at the USARB by the leadership team, the social worker, and members of the professional staff agencies.  The commander further stated that the applicant possessed the mental and physical ability necessary to be an effective soldier; however, his attitude and his failure to constructively respond to his rehabilitation program clearly indicated that he should not be retained in service. 

On 28 December 1973, the applicant consulted legal counsel and was advised of the basis for the contemplated separation action and its effects on him.  In addition, counsel advised the applicant of the rights available to him at that time.  The applicant completed his election of rights and elected to waive his right to have his case heard by an administrative separation board and his right to a personal appearance before the administrative separation board.  He also waived his right to representation by counsel and he elected not to submit a rebuttal statement in his own behalf.  

On 28 December 1973, the intermediate level commander recommended approval of the separation action on the applicant and also requested that rehabilitative requirements be waived in this case.  On 23 January 1974, the appropriate authority approved the separation action, waived further rehabilitation, and directed that the applicant receive an UD.  Accordingly, on 
25 January 1974, the applicant was discharged after completing just 7 months and 19 days of credible active service and having had accrued 132 days of time lost due to AWOL and confinement.  

There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within the 15 years statute of limitations.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect, at the time, provided the policy and outlined the procedures for separating individuals for unfitness.  Individuals separated under these provisions normally received an UD.

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 Board noted the applicant’s contentions that proper consideration was not given to the serious problem he had with drinking and the deep depression he was experiencing as a result of marital problems; and that he was not properly informed of all the ramifications of his discharge.  However, these contentions are not supported by either the evidence of record or the independent evidence submitted by the applicant.  

2.  The evidence of record shows that the applicant consulted with counsel and was fully informed of the basis for his discharge and its effects on him.  In addition, the separation packet reflects that the applicant was extensively counseled at the USARB by a leadership team, a social worker, and members of the professional agency staff, and that he failed to respond to those rehabilitation efforts.  Therefore, the Board found no basis for granting relief in this case.  

3.  The Board found the discharge process was proper and equitable in all respects and that the characterization of service was commensurate with the applicant’s overall record of service.

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 sufficient relevant evidence to demonstrate the existence of probable error or injustice.  

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:

__cjs___  __dsj___    __rvo___  GRANT
 
________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029723	
SUFFIX		
RECON		
DATE BOARDED	2000/02/09	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/01/25	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.