MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 February 2002                   
	DOCKET NUMBER:   AR2001062873

	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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 discharge under other than honorable conditions (UOTHC) be upgraded to a “good discharge”.

APPLICANT STATES:  In effect, that 22 years has passed since his discharge. 

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

On 26 October 1976, the applicant enlisted in the Regular Army for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11C10 (Indirect Fire Infantryman).
The highest pay grade he achieved was pay grade E-3.

On 11 and 29 July 1977, the applicant was counseled for insubordination, for misconduct and for sleeping while on guard duty.

On 29 September 1977, while assigned to a unit at Fort Ord, California, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a superior noncommissioned officer.  His imposed punishment was 7 days extra duty and a forfeiture of $50.00 pay.

Between November 1977 and January 1978, the applicant was counseled on eight different occasions for failure to repair, for insubordination, for failure to secure a weapon and for disobeying a lawful order.

On 17 April 1978, the applicant accepted NJP for being disrespectful in language toward a superior officer and for failure to repair.  His imposed punishment was a forfeiture of $220.00 pay and a reduction to pay grade E-2.

Between June and October 1978, the applicant was counseled on three different occasions for insubordination, for being disrespectful, for damaging private property and for fighting in the barracks.

On 27 November 1978, the applicant accepted NJP for failure to repair.  His imposed punishment was a forfeiture of $150.00 pay, a reduction to pay grade 
E-2, 14 days restriction and extra duty.

On 28 December 1978, the applicant accepted NJP for assaulting an enlisted person with his fist.  His imposed punishment was a forfeiture of $100.00 pay per month for 2 months (suspended for 60 days), a reduction to pay grade E-1, 
10 days restriction and extra duty.

On 5 January 1979, the applicant accepted NJP for three occasions of failing to go to his appointed place of duty.  His imposed punishment was a forfeiture of $97.00 pay and 14 days restriction and extra duty.

On 23 January 1979, the commander notified the applicant that he was being recommended for discharge under the provision of Army Regulation 635-200, chapter 14, for misconduct.  The commander’s recommendation was based on the applicant’s frequent incidents of a discreditable nature with military and civilian authorities.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  He requested personal appearance, consideration, and representation by counsel before a board of officers.  He was afforded the opportunity to submit statements in his behalf, but declined to do so.

A mental and physical evaluation found the applicant qualified for separation.

On 17 May 1979, the board of officers convened.  The board recommended that the applicant be discharged for misconduct.

On 11 June 1979, the appropriate authority approved the board’s recommendation for discharge and directed the issuance of a Discharge Certificate Under Other Than Honorable Conditions.  On 22 June 1979, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for misconduct with a discharge UOTHC.  He had completed 2 years, 8 months and 18 days creditable active service and had 
4 days of lost time.

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 serious offense, conviction 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.

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.  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.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

3.  Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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

__jhl___  __rjw___  __rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062873	
SUFFIX		
RECON		
DATE BOARDED	20020226	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19790611	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6000	
2.		
3.		
4.		
5.		
6.