MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 September 2002
	DOCKET NUMBER:   AR2002073372

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that his discharge was initiated as a result of a marihuana pipe with residue being found in his room, even though he never failed a drug test or was apprehended for drug use.  He states that the reasons used by his unit commander to justify the separation action were untrue.  He indicates that he adapted to military life and as result of his father’s military experiences, he was raised with discipline and high standards being instilled in him.  In support of his application, he submits a copy his separation document (DD Form 214), Personnel Qualification Records (DA Form 2 and DA Form 2-1), and his promotion orders to private first class/E-3 (PFC/E-3).

COUNSEL CONTENDS:  In effect, that the applicant’s discharge was too harsh because the offense he committed were minor and did not involve any period of being absent without leave (AWOL) or other acts of serious misconduct.

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

On 20 January 1976, he entered the Army for a period of 3 years.  He completed training and was awarded military occupational specialty (MOS) 11B
(Light Weapons Infantryman). 

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It also confirms that the highest rank and pay grade the applicant attained while serving on active duty was private first class/E-3.  

The applicant’s record does contain a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  On 25 October 1976, he accepted NJP for possessing marihuana, being disrespectful towards a noncommissioned officer (NCO), and dereliction of duty.

The applicant was notified by his unit commander that separation action was being initiated to eliminate him from the Army under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program), for failure to maintain acceptable standards for retention.  The unit commander cited the reasons for taking the action were the applicant’s lack of self-discipline; lack of promotion potential; negative attitude, which adversely affected company and platoon morale; inability to adapt to military life; failure to accept authority; and failure to meet establish standards of performance.  The applicant acknowledged receipt of the notification, consulted with legal counsel, and elected not to contest the action or to submit a statement in his own behalf. 

On 10 November 1976, the separation action was approved by the appropriate authority.  On 12 November 1976, the applicant was discharged accordingly and issued a GD after completing a total of 9 months 23 days of active military service.

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

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-37, in effect at the time, stated that individuals who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of their poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and failure to demonstrate promotion potential may be discharged form the Army. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The Board notes the contention of the applicant and his counsel that the discharge was too harsh.  However, it finds insufficient evidence to support these claims.  

2.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with applicable regulations.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record further shows that it was only after the applicant did not conform to required standards of discipline and performance that the command appropriately determined that he did not demonstrate the potential for further military service.  Further, the Board finds that the applicant and his counsel have failed to provide evidence to show that his discharge was too harsh.  Therefore, it finds that the requested relief is not warranted in this case. 

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

__CLA__  ___MHM___  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002073372	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/05	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19761112	
DISCHARGE AUTHORITY	AR635-200, para 5-37.  .  .  .  .  	
DISCHARGE REASON	Failure to Maintain acceptable standards for retention  (EDP)	
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.2400	
2.		
3.		
4.		
5.		
6.