MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:   19 May 1999                           
	DOCKET NUMBER:   AR1999023107

	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. Loren G. Harrell		Director	
	M Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		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 under other than honorable conditions (UOTHC) discharge be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In effect, that he has consistently been a productive member of society since being discharged.  He has lived an honorable life and he has had no legal problems.  He has suffered a stroke and now he needs help. He submits his social security record to show his work history, and a character reference in support of his request.

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

On 3 August 1976, the applicant enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 64C (Motor Transport Operator). The highest grade he achieved was pay grade E-2.

Between October 1976 and October 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on eight separate occasions: for disobeying a lawful order on 
23 October 1976 and 17 February 1977; for assault against another service member on 5 November 1976; for failure to go to his appointed place of duty at the prescribed time on 23 March, 20 May, and 19 June 1977; for sleeping on guard post on 13 July 1977; and for being drunk on duty on 19 September 1977. His punishments included forfeiture of pay, extra duty and restriction, and reduction from pay grade E-2 to pay grade E-1. 

On 13 June 1977, a bar to reenlistment was approved and imposed against the applicant.  On 22 August 1977, the applicant's commander notified him that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for misconduct-shirking.  On 1 September 1977, a medical separation examination and a mental status evaluation found him to be fit for discharge.

A commander's statement, dated 3 October 1977, indicated that the applicant had been relieved of driver duties and assigned unit police duties after wrecking a truck that was not dispatched to him nor did he have permission to drive.  After a very short period of time he was relieved of those duties and returned to his unit for failure to report to duty at the appointed time and for failure to carry out his duties in the manner prescribed. 

On 3 November 1977, the applicant acknowledged notification of the commander’s intent to separate him.  On 3 November 1977, he consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to him.  He waived consideration of his case by a board of officers.  He also declined to submit a statement in his own behalf. 

On 29 November 1977, the applicant requested that he be given a rehabilitative transfer.  On 28 December 1977, the intermediate commander recommended that the separation action be approved.  On 12 January 1978, the appropriate authority waived the request for a rehabilitative transfer, approved the separation recommendation and directed the issuance of a UOTHC discharge.  

On 31 January 1978, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for misconduct-shirking with a UOTHC discharge.  He had completed 1 year, 6 months and 29 days of creditable active service and he had no recorded lost time.

Army Regulation 635-200 then in effect, set forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 13 of that regulation provided, in pertinent part, that commanders would separate a member when in the commander's judgement, it was clearly established that the member would not develop sufficiently to become a satisfactorily soldier.  When separation for unfitness (misconduct) was warranted a UOTHC was normally considered appropriate. 

On 5 June 1981, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 the aforementioned requirement.

2.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant has provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 

3.  The Board noted the applicant's character reference and other documents submitted with his application outlining his successful accomplishments since separation from active duty.  The applicant is to be commended for his efforts.  However, these accomplishments do not provide the Board a basis upon which to grant relief.

4.  His current medical condition, while unfortunate, does not provide the Board a basis upon which to grant relief.

5.  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

JNS____  RGH____  RWA_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023107	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19780131	
DISCHARGE AUTHORITY	AR 635-200  	
DISCHARGE REASON	Misconduct/shirking	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	He has consistently been a productive member of society since his departure from the military.	
2.		
3.		
4.		
5.		
6.