MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            27 June 2002
	DOCKET NUMBER:   AR2001064026

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Kathleen A. Newman		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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 general discharge (GD) under honorable conditions be upgraded to honorable.  

APPLICANT STATES:  He states, that sufficient time has passed, since his discharge which would allow for an upgrade.  In essence, he requests that his military records be reviewed and that serious consideration be given to the matter of his discharge.

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

He enlisted in the Regular Army for a period of 3 years on 7 February 1973.  He completed Basic Combat Training and began Advanced Individual Training (AIT) on 13 April 1973.  Prior to completion of AIT he was listed as being absent without leave (AWOL). 

On 27 June 1973 he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave from 21 May to 29 May 1973 and again from 1 June to 21 June 1973.  His punishment included forfeiture of $75.00 pay per month for two months, with the second month suspended for 45 days; restriction for 30 days, suspended for 
45 days; and extra duty for 15 days, suspended for 45 days. He did not appeal.  

The applicant’s DA 2-1, Item 6 (Military Occupational Specialties) shows that he was awarded MOS 12B20 (Combat Engineer) on 31 August 1973 and transferred to Germany, for duty, on 27 September 1974.

On 26 February 1975, while stationed in Germany, the applicant was convicted 
by a special court-martial of one specification of being AWOL from 
17 December 1974 to 19 January 1975.  His approved sentence included reduction to pay grade E-1, to be confined at hard labor for 6 months, and to forfeit $229.00 pay per month for 6 months.  He was transferred from pre-trial confinement at the United States Army, Area Confinement Facility, Mannheim, Germany, to the United States Army Retraining Brigade (USARB) at Fort Riley, Kansas.

On 3 April 1975 the applicant’s commander recommended that the applicant be discharged under the provisions of AR 635-200, Chapter 13 paragraphs 13-5a(1).  He stated that all requirements for unfitness were met based on the applicant’s established pattern of shirking.  

On 11 April 1975 the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  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 and representation by counsel.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

On 8 April 1975, a mental status evaluation, found the applicant essentially normal both mentally and physically. 

On 29 April 1975 the appropriate authority waived further rehabilitative action, approved the separation recommendation, and directed the issuance of a undesirable discharge.  

On 30 April 1975 the applicant was inadvertently separated with a general discharge, under the provisions of AR 635-200, chapter 13, paragraph 13-5a(1), for unfitness due to shirking.  He had completed 1 year, 11 months, and 17 days of creditable active service and he had 97 days lost time due to being AWOL or in military confinement.  His awards and decorations include the National Defense Service Medal. 

Army Regulation 635-200 in effect at the time sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13, paragraph 13-5a(1) of this regulation, in effect at the time, provided for separation for unfitness due to shirking.  The regulation requires that separation action will be taken when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory soldier.  Service of soldiers separated because of unfitness under this regulation was normally characterized under other than honorable conditions or under honorable conditions.

There is no record that he ever submitted a request for review of his discharge by the Army Discharge Review Board within that board’s 15-year statute of limitation.

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 was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

2.  An error was made in that the applicant actually received a general discharge rather than the undesirable discharge that was directed.  No change to his record is warranted.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge was lenient considering the applicant's overall record of military service.

4.  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.

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

__INW __  ___KAN _  ___RTD _  DENY APPLICATION

Carl W. S. Chun
Director, Army Boards for Correction
of military Records

INDEX

CASE ID	AR200164026	
SUFFIX		
RECON	 	
DATE BOARDED	20020627	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 635-208 	
DISCHARGE REASON	Shirker	
BOARD DECISION	DENY 	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.