MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            15 March 2000
	DOCKET NUMBER:   AR1999030746

	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. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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) discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that clemency is warranted because it is unjust for him to continue to suffer the consequences of his bad discharge.  He claims his ability to serve was impaired by his youth and immaturity.  He admits what he did was wrong and if he had it to do over again it would be different.  He has enclosed a statement from his psychiatrist and four character references in support of his application.  He comments that since his discharge he has been in and out of mental institutions and prison, and is now seeking help to turn his life around.  

COUNSEL CONTENDS:  In effect, that the applicant only possessed a 
10th grade education at the time of his enlistment and admits to using drugs and alcohol.  Since his discharge the applicant has been diagnosed with a bipolar disorder by the alcohol and drug abuse team at Summit County Jail, Akron, Ohio. These factors are evidence of the challenges the applicant had to overcome and he is currently seeking treatment for his mental disorder.  He is currently drug and alcohol free and counsel asks that the Board accept the lay testimony provided and his post service conduct as a basis to upgrade his discharge.  

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

On 30 November 1973, he enlisted in the Regular Army for 3 years at the age of 17.  He was granted the rank of private/E-2 on his enlistment based on his having completed 2 years of training in a Junior Reserve Officer Training Course (JROTC) program.  He successfully completed basic training and advanced individual training at Fort Leonard Wood, Missouri.  Upon successful completion of his training he was awarded military occupational specialty (MOS) 12A (Pioneer) and was assigned to Fort Riley, Kansas for his first permanent duty station.

The record shows that the highest rank the applicant attained, while on active duty, was specialist/E-4.  There are no documented acts of valor, significant achievement, or service warranting special recognition on file in his service record.  There is, however, an extensive disciplinary history recorded, which includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on four separate occasions.

On 18 December 1974, the applicant accepted NJP for wrongfully having in his possession a smoking pipe containing marijuana residue.  His punishment for this offense was a forfeiture of $90.00 and 7 days of extra duty.  On 13 February 1975, he again accepted NJP for failing to go to his prescribed place of duty.  His punishment included a forfeiture of $30.00 and 14 days of extra duty.

In March 1975, the applicant accepted NJP on two separate occasions.  The first, on 15 March, for wrongfully possessing a smoking device containing marijuana residue.  His punishment for this offense was a forfeiture of $125.00 per month for 2 months (suspended) and 14 days of restriction and extra duty.  The second on 17 March, for wrongfully possessing unexpended ammunition.  The resultant punishment included a reduction in rank to private first class/E-3; a forfeiture of $50.00; and 14 days of extra duty.

On 7 April 1975, the applicant’s unit commander notified him of the intent to process him for separation, under the provisions of Chapter 13, Army Regulation 635-200 for unfitness, and advised him of his rights.  

On 19 April 1975, the applicant underwent a thorough medical examination for separation.  In the medical history form completed by the applicant during this process, he responded that he had no physical or mental conditions and indicated he was in fair health; and the clinical evaluation portion of the examination contained a normal finding, in block 42, psychiatric evaluation.  The applicant was cleared for separation by competent medical authority with no physical or mental defects noted.  

On 9 May 1975, the applicant consulted legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  At this time, the applicant completed his election of rights statement, in which, he waived the following rights:  his right to have his case heard by an administrative separation board of officers; his right to personal appearance before a board of officers; his right to representation by counsel.  In addition, the applicant elected not to submit a statement of rebuttal in his own behalf.

On 28 May 1975, the appropriate authority approved the applicant’s separation and directed that he be discharged, under the provisions of Chapter 13, Army Regulation 635-200 for unfitness, and that he be issued an Undesirable Discharge Certificate.  Accordingly, on 6 June 1975, the applicant was discharged after completing 1 year, 6 months, and 7 days of active military service.

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

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 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 separation for unfitness.  An undesirable discharge was 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 contentions of the applicant and his counsel have been noted by the Board.  However, while the Board has taken cognizance of the applicant's age, his current mental condition, and his post-service conduct; none of these factors, either individually or in sum, warrant the relief requested.  

2.  The Board found that the discharge proceedings were conducted in accordance with law and regulations applicable at the time, and that the character of the applicant’s discharge is commensurate with his overall record of military service.

3.  After carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board concluded that there is no basis to conclude that the applicant suffered from a mental condition during his tenure in military service.  He underwent a complete physical and mental examination prior to his discharge from service, and he was cleared for separation by competent medical authority.  The current diagnosis, rendered by civilian physician, some 25 years later can in no way be connected to the applicant’s service.  Therefore, the Board determined that this factor does not mitigate the applicant’s extensive record of misconduct at that time.  

4.  The Board noted that the applicant was only 17 years of age when he entered service.  However, the evidence of record shows that he entered the Army in the rank of private/E-2 as a result of completing 2 years of JROTC training, that he successfully completed basic and advanced individual training, and that he had successfully served over a year prior to his misconduct.  Therefore, the Board concluded that his youth and immaturity did not impair his ability to serve.

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

__rvo____  ___mkp _  __vbc___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030746	
SUFFIX		
RECON		
DATE BOARDED	2000/03/15	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/06/06	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.