MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             23 February 2000                 
	DOCKET NUMBER:    AR1999032334

	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. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that while he was on active duty at Fort Riley, Kansas, he injured his knee.  This injury was misdiagnosed as a sprained knee when in reality it had torn cartilage.  This caused him to be unable to continue his physical duties or assignments.  He claims that until his injury he tried to be the best soldier he could be and he now needs a discharge upgrade to receive medical assistance.  

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

On 16 August 1975, the applicant enlisted in the USAR for 6 years.  He successfully completed his initial active duty for training at Fort Jackson, South Carolina on 27 February 1976 and was awarded military occupational specialty 76Y (Supply Specialist) and was released back to his USAR unit.  

On 31 July 1978, the applicant was ordered to active duty, in the grade of private/E-2, with an active duty commitment of 18 months and 25 days.  He was assigned to Fort Riley, Kansas to serve his active duty commitment and arrived there in August 1978.  

The applicant’s active duty record documents no acts of valor, significant achievement, or service warranting special recognition.  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.  In addition, the record indicates that the applicant served a 5 day period of confinement from 9 to 13 January 1980.

On 7 December 1978, the applicant accepted NJP for treating a superior noncommissioned officer with contempt by pushing him to the ground.  His punishment for this offense was 5 days of extra duty.  On 24 April 1979, he accepted NJP for willfully disobeying a lawful order and was punished with a forfeiture of $70.00 and 7 days of extra duty.  On 22 August 1979, he accepted NJP for leaving his place of duty without authority and was punished with a forfeiture of $100.00 and 7 days of extra duty.  Finally, on 18 September 1979 he accepted NJP for sleeping on guard duty.  His punishment for this offense included a forfeiture of $50.00 and 14 days of restriction and extra duty.

The evidence of record does not include a separation packet with the specific facts and circumstances surrounding the events which led to his being processed for separation.  The record does include a properly constituted DD Form 214 (Certificate of Release from Active Duty), signed by the applicant.  This document identifies the reason for and characterization of the applicant’s discharge.  

On 28 February 1980, the applicant was separated with an UOTHC characterization of service, under the provisions of Paragraph 14-33b, 
Army Regulation 635-200, by reason of frequent incidents of a discreditable nature with civil or military authorities (misconduct).  At the time of his discharge he had completed 1 year, 6 months, and 23 days of active military service and he had accrued 5 days of time lost due to imprisonment.  

The applicant’s medical records were not available to this Board for review.  However, there is no indication elsewhere in the record that would indicate that the applicant’s discharge was impacted by a medical condition.  In addition, procedurally, the applicant would have had to been medically cleared for separation by competent medical authority.

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

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A characterization of service of under other than honorable conditions is normally considered appropriate for a member separated under these provisions. 

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 contention that he experienced medical problems on active duty and is now in need of medical assistance.  However, the Board concluded that these factors do not mitigate the applicant’s misconduct sufficiently to warrant an upgrade to his discharge.  

2.  Although the applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army, the Board did note that the record contained a properly constituted DD Form 214, signed by the applicant, which identifies the reason for and the characterization of the applicant’s discharge, and the Board presumed government regularity in the discharge process.  

3.  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 the aforementioned requirement.

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

__rvo____  __eb____  __rjw___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032334	
SUFFIX		
RECON		
DATE BOARDED	2000/02/23	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/02/28	
DISCHARGE AUTHORITY	AR635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.