MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 June 2000
	DOCKET NUMBER:   AR1999033387

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Ms. Lana E. McGlynn 		Member	
	Mr. Arthur A. Omartian		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 be upgraded to honorable.

APPLICANT STATES:  That clemency is warranted because it is an injustice for him to continue the adverse consequences of a bad discharge;  that his record of promotions shows that he was generally a good soldier; that his record of nonjudicial punishment (NJP) and court-martial indicates only isolated or minor offenses; that drug and alcohol use impaired his ability to serve; and that the punishment he got was too severe.  He also states that personal problems and certain other problems (not defined) impaired his ability to serve, and he should have received a medical discharge with continual outpatient alcohol counseling.

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

He enlisted on 17 March 1975 and, after training, was assigned to Fort Ord, California.

During the period October 1975 through June 1976, the applicant received 
10 formal counseling statements concerning aggravated assault, dishonored checks, drunk driving, poor duty performance and AWOL.  He was administered NJP under Article 15, UCMJ, in February 1976 for assaulting two soldiers with a dangerous weapon (chain) likely to produce grievous bodily harm.

On 15 June 1976, the applicant was tried by a summary court-martial and found guilty of AWOL from 24 February 1976 to 23 March 1976.  He was sentenced to 45 days restriction, forfeiture of $200.00, and reduction to private E-1.

The applicant’s promotion record reveals that he was never promoted beyond the rank of private E-2.  

On 8 July 1976, the applicant’s commander recommended he be discharged for  misconduct under the provisions of Army Regulation 635-200, chapter 13.  The applicant consulted with counsel and waived consideration by a board of officers. He acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued a discharge under other than honorable conditions, and that he may be ineligible for many or all benefits as a veteran under both federal and state laws.  He declined to submit a statement in his own behalf.

The Board notes that during his separation proceedings, the applicant was interviewed by the Supervisor of Social Services, Fort Ord Rehabilitation Center, and was determined not to be drug/alcohol dependent.

On 2 August 1976, the separation authority, a major general, approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 16 August 1976 with 1 years, 3 months and 
22 days of creditable service and 38 days of time lost.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  Chapter 13, in effect at the time, 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.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 applicant's administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

2.  The applicant’s contention that his record of NJP and court-martial indicates only isolated or minor offenses is not accepted.  Assault with a dangerous weapon and AWOL for nearly a month are not considered minor offenses by this Board.

3.  Contrary to his statement, the applicant’s record of promotions is practically nonexistent.  The highest grade he achieved while serving was private E-2.

4.  There is no evidence or record of alcohol/drug abuse as the applicant claims. While undergoing separation proceedings, he was found by the Fort Ord Rehabilitation Center not to be drug or alcohol dependent.

5.  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.

6.  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

__slp___  __lem____  __aao___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033387	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19760816	
DISCHARGE AUTHORITY	AR635-200 CH13	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.