MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            1 March 2000                  
	DOCKET NUMBER:    AR1999032211

	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. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby 		Member	
	Mr. John Saputo		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 he be granted appropriate promotions and that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).  In addition, he requests that his DA Form 20 (Qualification Record) be corrected in the following areas:  block 7 (Race); block 20 Birthplace of Mother and Father; block 33 (Appointments & Reductions); block 42 (Remarks); block 
44 (Time Lost); block 47 (Signature); and block 48 (Audit Date).  He further asks that corrections be made to the clinical evaluation portion of his physical examination form and that he be issued the National Defense Service Medal (NDSM) and the M-16 Rifle Marksman Qualification Badge, which he earned during his service.  

APPLICANT STATES:  In effect, that he would not have received this type of discharge under current standards; that he was within 5 months of completing his enlistment and it was unjust for him to receive a bad discharge; that his record of nonjudicial punishment (NJP) shows only minor and isolated incidents; that his discharge was too harsh; that the forgery of his mother’s signature on the enlistment consent form and the fact that he had not completed the GED test as the enlistment contract indicates should have voided his enlistment; that he was a target for his recruiter based on his youth and immaturity; that he should have received severance pay from his accrued leave at the time of his discharge; that he was denied the enlistment options he joined for, which hampered his ability to serve; and that he was not given a thorough and correct medical examination prior to his enlistment.  He further requests that he be provided the NDSM and the M-16 Rifle Marksman Qualification Badge he earned while on active duty.  He also indicates that his qualification record (DA Form 20) indicates that his conduct and efficiency ratings were excellent during training, as evidenced by his being selected the flag bearer for his company, and this should have resulted in his being promoted earlier than he was.  He claims that the lack of this early promotion demoralized him to the extent that it had an adverse impact on his performance.  He goes on to state that he was discharged with just 
5 months and 13 days left to complete his enlistment, and this injustice has contributed to his current situation and incarceration.  He also indicates that he has been denied employment as a result of this discharge. The applicant contends that he was fraudulently enlisted because his recruiter erroneously recorded, in his enlistment packet, that he had completed his GED testing and had earned a High School Equivalency Diploma.  His admits that his recruiter did send him to take the GED test in February 1972, but he did not pass.  This he contends is supported by the fact that the record indicates that he completed special subjects such as Algebra, Geometry, and Chemistry, which are not even offered on the GED test.  He also claims that the name and location of the school where he completed the GED was internally omitted from his record in order to hide the fact he did not have a GED at the time.  He offers in support of his fraudulent entry allegation the fact that the Texas Education Agency has no record of his testing prior to 1982, when he did in fact take and pass the GED test.  
He contends that this whole situation was driven by his recruiter in order to meet his quota and that he was too young and immature to react and provided his recruiter an easy target.  He also claims that, although his father did sign the consent form for his enlistment, his mother did not.  Her signature was forged on his enlistment papers by his recruiter and for this reason he now requests that his mother’s signature be expunged from his enlistment papers.  He also claims his record is in error and erroneously indicates that he received his training on the Geneva-Hague Convention on 3 March 1972, which is 5 days prior to his entering the Army.  He goes on to allege that his record is in error because the rank listed on his discharge is private/E-1 and the last rank recorded on his DA Form 20 is private/E-2.  Therefore, his record should be corrected to show the proper rank.  He also argues that he should have accrued a total of 76.25 days of leave during his tenure in service and that given he only used 38.25 days of that leave he should be provided payment for the remaining 38.25 days, which he was denied as a result of the type of discharge he received.  The applicant also requests that the following corrections be made to his DA Form 20:  
block 7 (race) change to read “Black” as opposed to the currently listed “NEG”; block 20 (birthplace and citizenship) add the birthplaces of his parents; block 
44 (time lost); block 47 (signature) where he claims that Jr. was erroneously added by someone other than him; and block 48 (audit date) which he claims was completed without his knowledge.  The applicant also states that he was never issued the NDSM or the M-16 Rifle Marksman Qualification Badge he earned.  He further indicates that his enlistment medical examination contains several errors.  These include the fact he was never clinically evaluated in several listed areas and that it shows he received a pelvic examination.  He concludes by stating that the short period of time between his return from AWOL and his discharge did not provide him adequate time to properly prepare for his defense. Finally, the applicant contends that his current incarceration is a result of the type of discharge he received and that his conduct since his imprisonment has been excellent and productive, as evidenced by the fact that during his confinement he has successfully completed the following:  GED tests, which resulted in his being awarded a Certificate of High School Equivalency from the State of Texas; a Department of Labor, Data Entry Apprenticeship Program, sponsored by the Texas Department of Corrections, Huntsville, Texas; a Data Entry Operator Course given by the Windham School System, Huntsville, Texas; and he has earned an Associate in Arts Degree from the Anderson County Junior College, Athens, Texas.  The applicant has enclosed these documents in support of his application and has also included an extended brief outlining his case.

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

On 8 March 1972, the applicant enlisted in the Regular Army for 3 years, at the age of 17 years and 6 months, for the airborne training option.  

The enlistment packet prepared during the applicant’s enlistment process does contain a DD Form 373 (Consent, Declaration, of Parent or Legal Guardian), which was signed by both the applicant’s parents and witnessed by a recruiting official.  The packet also contains a Standard Form 88 (Report of Medical Examination) which documented that the applicant was male and that he was medically cleared for enlistment by competent medical authority.  In addition, the medical examination form was authenticated by the applicant, who had also completed a Standard Form 93 (Report of Medical History), in which he indicated he was in good health.  

In May 1972, the applicant successfully completed basic combat training at Fort Polk, Louisiana.  On 19 July 1972, he signed a voluntary waiver of his enlistment option of airborne training and stated that he understood upon the completion of his training he would be assigned based on the needs of the Army.  In August 1972, he completed training in and was awarded a military occupational specialty (MOS) of 73C (Pay Disbursing Specialist); and he was assigned to Fort Huachuca, Arizona for his first permanent duty station.

The applicant’s record of promotions and reductions indicate that he was promoted from private/E-1 (PV1) to private/E-2 (PV2) on 6 July 1972; that he was promoted from PV2 to private first class/E-3 (PFC) on 20 June 1973; that he was reduced in rank from PFC to PV1 on 1 February 1972; and that he was again promoted to the rank of PV2 on 8 April 1974.  This record of promotions and reductions does not account for the applicant’s final reduction to the rank of PV1. This reduction was mandated by regulation, which required that any soldier separated for misconduct, who received an under other than honorable conditions characterization of service, be reduced to the lowest enlisted rank in conjunction with his discharge.

The applicant’s DA Form 20 codifies the applicant’s race in block 7 (race) as “NEG”; block 30 (birthplace and citizenship) indicates that the place of birth of the applicant’s parents was unknown at that time; block 42 (remarks) contains a typed entry which indicates that the applicant was briefed on the Geneva-Hague Convention on 3 March 1973 and calls for the applicant’s initials for verification, however, this verification and the applicant’s initials are not included on the form; block 44 (time lost) accounts for two periods of AWOL, the first for 2 days from 
6 November to 7 November 1972, and the second for 28 days from 27 December 1973 to 23 January 1974, there are not entries for an additional 35 days of AWOL the applicant accrued just prior to his separation; and blocks 47 and 
48 contain the applicant’s signature and a pencil audit date of 26 November 1973.

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, the record does include an extensive disciplinary history, which includes the applicant’s acceptance of nonjudicial punishment (NJP), under Article 15 of the UCMJ, on at least four separate occasions.  

On 13 November 1972, the applicant accepted NJP for a 2 day period of AWOL from 6 to 8 November 1972.  His punishment for this offense included a verbal reprimand, a forfeiture of $60.00; and 10 days of restriction and extra duty.  On 
2 August 1973, the applicant again accepted NJP for dishonorably failing to pay just debts.  The resultant punishment included a forfeiture of $40.00 and 7 days of extra duty.

On 24 October 1963, the applicant accepted NJP for two specifications of failing to go to his prescribed place of duty on separate occasions.  He was punished with a forfeiture of $37.00 and 14 days of extra duty. On 25 January 1974, the applicant accepted NJP for being AWOL from his unit between 27 December 1973 and 23 January 1974.  The resultant punishment included a reduction to the rank of PV1; a forfeiture of $160.00 per month for 2 months; and 45 days of extra duty.  

The evidence of record also shows that, subsequent to his last NJP and prior to his being discharged, the applicant accrued an additional 35 days of time lost due to AWOL as follows:  1 to 2 July 1974; 14 to 15 September 1974; and 
20 September to 21 October 1974.  

The available record does not contain the separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing.  However, there is a properly constituted DD Form 214 (Report of Separation from Active Duty) on file, which was signed by the applicant.  This document indicates that the applicant was separated under the provisions of Paragraph 13-5 a (1), Army Regulation 635-200, for frequent involvement of a discreditable nature with authorities (misconduct), and that his service was characterized as under other than honorable conditions.

The DD Form 214 also shows that the applicant was separated on 25 October 1974 and that he was issued an Undesirable Discharge Certificate.  At the time of his separation the applicant had completed 2 years, 6 months, and 17 days of active military service and he had accrued 65 days of time lost due to AWOL.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness and unsuitability.  Paragraph 13-5 provided for the separation for misconduct, which included frequent involvement of a discreditable nature with authorities.  When separation was for misconduct 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.  While the applicant’s record is void of the specific facts and circumstances concerning events that led to a discharge from the Army, the Board did note that his record contains a properly constituted DD Form 214, which was authenticated by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.  

2.  Procedurally, in connection with this type of discharge, the applicant would have been afforded the opportunity to consult with defense counsel.  In addition, he would have been given the option of personally appearing before and having his case considered by an administrative separation board.  In the absence of information to the contrary, the Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the Board concluded that the existing evidence of record fully supports the separation action taken by the applicant’s command and that the characterization of service is commensurate with the applicant’s overall record of service.  Therefore, the Board determined that an upgrade to his discharge is not warranted.  

3.  The Board found no merit in the applicant’s claim that his record of promotions should be appropriately modified as a result of his not receiving a more expeditious promotion to PV2 based on his excellent conduct and efficiency ratings in training.  Further, the applicant’s contention that the grade listed on his DD Form 214 should read PFC because his DA Form 20 did not codify his last reduction to PV1 is not a valid request.  Army Regulations mandate that a soldier be reduced to the lowest enlisted rank in conjunction with a misconduct discharge, which results in a characterization of service of under other than honorable conditions.

4.  The Board found that the applicant’s discharge was not too harsh under current standards and because he only had a short time left to complete his service obligation.  These factors do not excuse the applicant’s misconduct and are not sufficiently mitigating to warrant relief. 

5.  The Board noted the applicant’s contention that his recruiter perpetrated a fraud in his enlistment processing by falsely indicating that he held a GED and by forging his mother’s signature on the enlistment consent form.  However, these allegations are not supported by the evidence of record and the applicant has failed to provide any convincing substantiation of these charges.  Further, even if these factors were true, there is no indication that they prejudiced the rights of the applicant during the discharge process.  

6.  Additionally, the Board noted and considered the applicant’s claims that there are several errors contained on his DA Form 20 and that there were errors contained on his entrance medical examination.  However, Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error.  In this case, the applicant had an established record of misconduct and substandard performance of duty with few significant favorable entries in the record.  The available evidence of record did not create a substantial doubt that the discharge would have been any different even if all the errors alleged by the applicant were true.  Therefore, the Board concluded there is no effective relief to be granted as a result of these factors. 

7.  The Board concluded that the applicant’s contention that he was unfairly denied airborne training which impaired his ability to serve is unfounded.  The record shows that the applicant properly waived his airborne training option and that he completed training and served for over 2 years prior to his discharge.

8.  While the Board has taken cognizance of the applicant's age, his employment problems, and his claim that his ability to serve was impaired as a result of his not being provided an expeditious promotion, none of these factors, either individually or in sum, warrant the relief requested.

9.  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.  

10.  The Board noted the applicant’s request that he be issued the NDSM and the M-16 Rifle Marksman Qualification Badge.  This action is administrative in nature and does not require action by this Board.  In this case, the Board will request the Army Review Boards Agency (ARBA), Support Division, St. Louis, Missouri, to take appropriate action.

11.  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.

NOTE:  The ARBA, Support Division, St. Louis, is requested to initiate action to ensure the applicant is issued the NDSM Medal set and M-16 Rifle Marksman Badge. 

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__gdp___  ___js____  __mmd__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032211	
SUFFIX		
RECON		
DATE BOARDED	2000/03/01	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/10/25	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.