MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 August 2000
	DOCKET NUMBER:   AR1999032908

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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 be upgraded to a general, under honorable conditions discharge. 

APPLICANT STATES:  In effect, that his discharge was too harsh.

COUNSEL CONTENDS:  In effect, that the injustice raised by the applicant in his application to the Board in conjunction with the applicant’s official Army records amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, counsel rests on the record. 

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

On 22 September 1972, he entered the Regular Army for 2 years.  He completed basic training at Fort Leonard Wood Missouri and advanced individual training (AIT) at Fort Ord, California.  Upon completion of AIT he was awarded military occupational specialty 64C (Motor Transport Operator) and he was assigned overseas to Germany for his first permanent duty station.

The applicant’s record shows that the highest rank he attained while on active duty was private/E-2 and there are no documented acts of valor, significant achievement, or service warranting special recognition on file in his service record.

The record does, however, contain an extensive disciplinary history.  This includes the applicant’s trial and conviction by summary court-martial, on two separate occasions, and his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two separate occasions. 

On 8 November 1972, while still in basic training, the applicant accepted NJP for being absent without leave (AWOL) from his unit from 5 to 7 November 1972.  His punishment for this offense included a forfeiture of $65.00 and 14 days of restriction and extra duty. On 23 April 1973, he accepted his second NJP for disobeying the lawful order of a superior commissioned officer.  His punishment for this offense was a forfeiture of $30.00.  

On 12 June 1973, the applicant was tried and convicted by a summary 
court-martial of two specifications of violating Article 86 of the UCMJ by failing to go to his prescribed place of duty and of two specifications of violating Article 92 by disobeying a lawful general regulation by possessing a knife and by disobeying a lawful order from a superior noncommissioned officer to report for guard duty.  His sentence included performing hard labor for 45 days and to forfeit $200.00 (suspended).

On 28 August 1973, the applicant was again tried and convicted by a 
summary court-martial.  This time for three specifications of violating Article 86 of the UCMJ by failing to go to his prescribed place of duty; two specifications of violating Article 91 by disobeying a lawful order and being disrespectful in deportment toward a superior Warrant Officer in the execution of his duties; and for violating Article 92 by being derelict in the performance of his duties.  The resultant sentence included a reduction in rank to private/E-1, a forfeiture of $200.00; and 60 days of restriction.

On 11 September 1973, the unit commander notified the applicant of the intent to initiate elimination action against him, under the provisions of paragraph 
13-5a(1), Army Regulation 635-200, for unfitness.  In his request for the applicant’s elimination from service, the unit commander cited the applicant’s lack of respect for authority, his inability to comply with normal orders, and his refusal to change his attitude as reasons for submitting the action.

On 12 September 1973, the applicant consulted legal counsel, and after being advised of the basis for the contemplated separation and its effects, and of the rights available to him, he completed his election of rights.  The applicant choose to waive the following rights:  consideration of his case by a board of officers; personal appearance before a board of officers; representation by counsel; a psychiatric evaluation; and he elected not to submit a statement in his own behalf.

On 29 September 1973, the appropriate authority approved the applicant’s separation, under the provisions of paragraph 13-5a(1) of Army Regulation 
635-200, by reason of unfitness and directed that the applicant receive an undesirable discharge.  Accordingly, on 15 October 1973, the applicant was discharged after completing 1 year and 22 days of active military service.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(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 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 Board noted the contentions of the applicant and his counsel that his discharge was too harsh.  However, after carefully examining the evidence of record, the Board finds this claim lacks merit. 

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the applicant’s discharge is commensurate with his overall record of military service.  Therefore, the Board concludes relief is not warranted in this case.

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 this 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

___sk___  __ja_____  ___reb__  DENY APPLICATION

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

INDEX

CASE ID	AR1999032908	
SUFFIX		
RECON		
DATE BOARDED	2000/08/08	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/10/15	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.