MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 April 2002                  
	DOCKET NUMBER:   AR2001063913

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge		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:  That his general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge.

APPLICANT STATES:  That in Suffolk, Virginia, on 25 July 1972, he enlisted in the military for the "buddy plan" and he believes he was treated wrong when he was separated with a GD.  He submits in support of his request a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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

That he enlisted in the Regular Army on 25 July 1972 for 4 years and a cash bonus enlistment option in Army Career Group 11, Infantry.  Upon completion of basic combat training at Fort Jackson, South Carolina, on 7 October 1972, he left his unit in an absent without leave (AWOL) status.  On 22 January 1973, he returned to military control at Fort Belvoir, Virginia.   He did not complete advanced individual training and he was never awarded a military occupational specialty. 

On 3 February 1973, while in pretrial confinement, he refused a lawful order to shave and to get a haircut.

On 21 February 1973, the applicant was convicted by a special court-martial of being AWOL from 7 October 1972-22 January 1973.  He was sentenced to forfeiture of $200.00 pay per month for 5 months and to be confined at hard labor for 5 months.  Only that portion of the sentence that provided for confinement at hard labor for 3 months and forfeiture of $200.00 pay per month for 3 months was approved.  The execution of that portion of the sentence in excess was suspended for 6 months unless sooner vacated. 

On 6 March 1973, he was assigned to the United States Army Retraining Brigade, Fort Riley, Kansas.  On 7 March 1973, the applicant was counseled and correctional progress notes indicate he stated that, during basic training, a drill sergeant picked on him because he was black and he just wanted out of the Army.  He did not want to participate in any further training.  His options were explained to him and he stated that he wanted to stay locked-up until he was discharged and he did not care what type of discharge he received.

The applicant's record contains numerous discreditable acts.  On 8 March 1973, he was found asleep in the barracks during police call.  On 9 March 1973, he was absent from retreat formation and was found lying on his bunk.  He also refused a lawful order from a commissioned officer.  On 10 March 1973, he refused a lawful order from a noncommissioned officer and he refused the lawful order of a guard. 

On an unknown date, the applicant's commander officially notified him that he was being recommended for discharge under the provisions of chapter 13, Army Regulation 635-200 for unsuitability, with a GD.  The applicant was informed of the basis for the contemplated separation action and the rights available to him.  The applicant's commander cited the basis for the recommendation was the applicant's discreditable acts.  The applicant's commander also stated that a discharge for unfitness was not deemed appropriate due to the applicant's lack of appropriate interest and defective attitude.  While being counseled by the unit social worker, the applicant got up and walked out because the social worker told him that it would take time for him to be discharged.  The applicant was uncooperative and unproductive and his commander recommended that he be eliminated from the service as unsuitable because of his extremely defective attitude and apathy.

On 4 April 1973, the applicant acknowledged notification of the commander’s intent to separate him.  He consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to him.  He waived the right to have his case considered by a board of officers.  He authenticated a statement that indicated he understood the ramifications of receiving a GD.  He did not submit a statement in his own behalf.

On the same date, the intermediate commander recommended approval and the appropriate authority waived further rehabilitation, approved the separation recommendation, and directed the issuance of a GD.

On 10 April 1973, the applicant was discharged under the provisions of chapter 13, Army Regulation 635-200, for unsuitability, with a GD.  He had completed 
2 months and 14 days of active military service and he had 182 days of lost time due to being AWOL and in military confinement.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member is unfit or unsuitable for further service.  A GD was generally 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.  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.  

3.  Both the characterization of service and the narrative reason for separation are commensurate with the applicant’s overall record of military service.

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

_MKP___  __EJA __  __RTD___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063913	
SUFFIX		
RECON	N/A	
DATE BOARDED	20020411	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19730410	
DISCHARGE AUTHORITY	AR635-200 	
DISCHARGE REASON	A40.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4000	
2.		
3.		
4.		
5.		
6.