MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          1 August 2000
	DOCKET NUMBER:  AR1999031143

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz Jr.		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 upgraded to a general discharge under honorable conditions. 

APPLICANT STATES:  The applicant makes no contentions.

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

That he enlisted in the Regular Army on 6 September 1972 for 2 years.
He served in military occupational specialty (MOS) 94B (Food Service Specialist). 

Between December 1972 and February 1973, while he was assigned to Fort Jackson, South Carolina, for advanced individual training, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful possession/use of marihuana.  The disposition is not a matter of record. On 23 February 1973, he was assigned to Fort Eustis, Virginia.  

On 16 July 1973, he accepted NJP for failure to go to his appointed place of duty at the prescribed time on 2 and 8 July 73.  His punishment included reduction from pay grade E-2 to pay grade E-1, forfeiture of pay, extra duty and restriction.

On 24 July 1973, he accepted a third NJP for wrongfully appropriating a 
1966 Mustang Coupe, valued at approximately $1,000.00, the property of another soldier.  His punishment included forfeiture of pay, extra duty and restriction. 

On 20 August 1973 a bar to reenlistment was initiated against him.  On
26 August 1973, he received a rehabilitative transfer.  He continued to perform below acceptable standards.  He was counseled many times concerning his appearance, punctuality, and performance of duty, for inadequate preparation for inspections, for financial difficulties and for sleeping while on duty. 

On 26 October 1973, his commander officially notified him that he was being recommended for discharge under the provisions of chapter 13, Army Regulation 635-200 for unfitness, with a UD.  The applicant was informed of the basis for the contemplated separation action and the rights available to him.  His  acknowledgement and initial record of counseling by legal counsel is not contained in the available records. 

On 7 December 1973, the applicant was notified that a board of officers would meet on 10 January 1974 to determine his suitability for retention or discharge from the service under the provisions of chapter 13, Army Regulation 635-200.

On 10 January 1974, the applicant appeared before the board with counsel. During the board proceedings, the fact that the applicant had received NJP 
(24 July 1973) for causing $400.00 in damage to another soldier’s privately owned vehicle while he was using it and that he had also allowed others to use the vehicle without the soldier’s authorization was discussed. 

Further, the board proceedings revealed that he received NJP’s on at least four occasions other than those that were previously mentioned.  He received NJP’s on 13 August 1973, 10 September 1973, and on 12 and 31 October 1973.  Neither the specific charges or the disposition of the NJP’s are contained in the available records.  

The board of officers determined that the he was unfit for retention in the service. The board recommended that he be separated with a UD.  The board concluded that he had established a clear pattern of shirking.  He had been given a rehabilitative transfer to another unit and he had not made the necessary attempts to improve his personal appearance or his duty performance.

On an unknown date, the final approval authority directed that the applicant be separated for unfitness with a UD.  

On 21 February 1974, the applicant was separated under the provisions of chapter 13, Army Regulation 635-200, for unfitness, shirking with a UD.  He had completed 1 year, 5 months and 16 days of creditable active military service and no lost time.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 then in effect, contained the policy and outlined the procedures for separating individuals for unfitness and provided, in pertinent part, that commanders would separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, due to frequent incidents of a discreditable nature with civil or military authorities, drug abuse, or an established pattern of shirking.  Although a general or an honorable discharge was authorized, a UD 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.  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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

3.  Both the characterization of service and the narrative reason for separation are commensurate with the applicant’s overall record of military 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

___dsj__  __kak____  __ewl___  DENY APPLICATION

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

INDEX

CASE ID	AR1999031143	
SUFFIX		
RECON		
DATE BOARDED	20000801	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19740221	
DISCHARGE AUTHORITY	AR 635-200, Chapter 13  	
DISCHARGE REASON	A40.00	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.