MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:              
	DOCKET NUMBER:   AR1999029997

	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.

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Ms. 		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 undesirable discharge (UD) be changed to  general, under honorable conditions (GD).

APPLICANT STATES:  In effect, that his chain of command made no attempts to rehabilitate him after his acts of misconduct; that prior to his assignment in Vietnam his conduct was considered excellent; that he had a personality conflict with the motor pool officer; that he received a promotion; and, that he was treated unfairly by his chain of command after his first act of misconduct.  

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

On 9 September 1968 he enlisted in the Regular Army for a period of 3 years.  He successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training (AIT) in military occupational specialty (MOS) 12A (Pioneer) at Fort Leonard Wood, Missouri.  Thereafter he was reassigned to a permanent unit at Fort Hood, Texas. 

The applicant’s record documents that the highest permanent rank he held on active duty was private first class/E-3 and the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 31 January 1972 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for driving a privately owned vehicle without a post registration.  The punishment imposed consisted of a forfeiture of $40.

On 9 March 1970 he accepted NJP for being absent from his unit.  The punishment imposed was a forfeiture of $20. 

On 24 March 1970 he was reassigned to Vietnam.

On 2 August 1970 he accepted NJP for willfully disobeying a direct order.  The punishment imposed was a forfeiture of $41.

On 18 August 1970 he accepted NJP for being absent from his place of duty – work call formation.  The punishment imposed was a forfeiture of $25 and 7 days extra duty.  

On 27 August 1970 he accepted NJP for failing to obey a lawful order.  The punishment imposed was a reduction to private/E-2 and a forfeiture of $34.

On 28 August 1970 he accepted three NJPs:  1)  Willfully disobeying and failing to obey an order by not wearing a steel helmut.  The punishment imposed consisted of a forfeiture of $34 and 6 days extra duty; 2)  Disrespect to an officer and being absent from his place of duty – extra duty.  The punishment imposed was a forfeiture of $94 and 6 days extra duty; and, 3)  Being absent from his place of duty – work call formation.  The punishment imposed was a forfeiture of $34 and 6 days extra duty. 

On 29 August 1970 he accepted NJP for being absent from his place of duty – reveille formation and work call formation.  The punishment imposed consisted of a reduction to private/E-1, a forfeiture of $93, and 6 days extra duty.

On 1 September 1970 he accepted two NJPs:  1)  Being absent from his place of duty – reveille formation.  The punishment imposed was a forfeiture of $16; and, 2) Being absent from his place of duty – kitchen police (KP) and extra duty.  The punishment imposed was a forfeiture of $17. 

On 1 September 1970 the unit commander counseled him for his lack of concern for assigned duties, disobedience, and disrespect for his chain of command.  The applicant was informed that he could face possible elimination from the Army for unfitness.  The applicant remarked that he could not work in the Army.  The commander indicated that the applicant’s attitude had not changed after continual observation and counseling. 

On 4 September 1970 the unit commander initiated a bar to reenlistment.  The unit commander indicated that the applicant required close supervision in any task assigned and that he had a very poor cooperative spirit.  The applicant signed the bar to reenlistment indicating that he understood the reasons for the bar and that he did not wish to make a statement.

On 8 September 1970 the applicant was counseled by the first sergeant.  The first sergeant indicated that the applicant was sent back to the company area from landing zone (LZ) Action and LZ Schuller because he would not obey orders.  The applicant responded to the counseling by inquiring how long it would take to get a discharge and that he would not miss the people in Vietnam only the Vietnamese people.

On 17 September 1970 the applicant was counseled by the platoon leader for unsatisfactory performance, a negative attitude towards the military and his superiors, and for possession of marijuana.  The platoon leader indicated that all efforts to rehabilitate the applicant had failed.  The applicant indicated that he wanted a release from the Army under any conditions available.  

On 19 September 1970 the unit commander initiated separation on the applicant under the provisions of AR 635-212 for an established pattern of shirking and unsatisfactory course of conduct.  The unit commander indicated that the applicant had a court-martial pending for possession of marijuana.  On 9 October 1970 the applicant was approved for discharge under the provisions of AR 635-212 with an undesirable discharge.

On 14 October 1970 the applicant was discharged with a UD.  He was credited with 2 years, 1 month, and 6 days of active military service.

AR 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separations for unfitness.  A UD was normally considered appropriate. 

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15 year statute of limitations.

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 discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation.

2.  The record does not support the applicant’s contentions, and no evidence has been submitted by the applicant to support his contentions, that he was unfairly treated by his chain of command, that no attempts were made to rehabilitate him after his first act of misconduct, or that a personality conflict existed with the motor pool officer.

3.  The record shows that he accepted NJP on 11 occasions, that he received counseling from the company commander, first sergeant, and platoon leader, and that he had court-martial charges pending against him for possession of marijuana at the time of his separation.  The separation authority waived further rehabilitative requirements after the applicant indicated that he lacked the desire for further service and would accept a discharge under whatever manner available. 

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 failed to submit evidence that would satisfy the aforementioned 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

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029812	
SUFFIX		
RECON		
DATE BOARDED	20000216	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19741209	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	6100	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 9321		
2. 9309		
3. 9311		
4. 9301		
5. 9317		
6.