MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 October 2002
	DOCKET NUMBER:   AR2002074695

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Margaret V. Thompson		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 discharge under other than honorable conditions be upgraded.

APPLICANT STATES:  That he has led a clean life since his discharge, that he has held down a job and has no felonies.

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

He enlisted in Seattle, Washington, on 28 October 1975, for a period of 4 years and training as a wheeled vehicle mechanic.  He successfully completed his training at Fort Leonard Wood, Missouri, and was transferred to Fort Hood, Texas, on 15 March 1976.  He was advanced to the pay grade of E-2 on 16 March 1976.

The applicant went absent without leave (AWOL) on 2 June 1976.  He was apprehended by civil authorities in Baker, Oregon, on 4 June 1976.  He was confined by civil authorities and was returned to military control at Fort Hood on 9 June 1976.  The record is silent as to any punishment imposed for that offense.

On 6 August 1976, nonjudicial punishment (NJP) was imposed against him for being AWOL from 19 July to 27 July 1976.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

The applicant again went AWOL from 6 July to 10 July 1977.  NJP was imposed against him for the AWOL offense and his punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

On 14 July 1977, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

He again went AWOL from 27 September to 28 September 1977.  The record is silent as to any punishment imposed for that offense as well.

On 14 October 1977, he underwent a mental status evaluation and was deemed to be mentally responsible, able to distinguish right from wrong and to adhere to the right.

On 3 November 1977, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13 for misconduct due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He cited as the basis for his recommendation the applicant’s disciplinary record, his failure to respond to numerous counseling sessions, and indicated that the applicant was a disciplinary problem.  He further stated that unless he is under close supervision, he shirks his duties and is a bad influence on other soldiers due to his un-military attitude and undermines the discipline of the unit.  He has a slovenly and dirty appearance and refuses to rectify the matter within command guidance.  The commander included counseling statements indicating that the applicant had been counseled on numerous occasions for being absent from his place of duty and being disrespectful towards superiors.  

After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved the recommendation on 6 December 1977 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 29 December 1977, under the provisions of Army Regulation 635-200, chapter 13, for misconduct, based on his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 2 years, 1 month and 5 days of total active service and had 18 days of lost time due to AWOL and confinement by civil authorities.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established the policy and prescribes procedures for separating members for various types of misconduct that included frequent involvement in incidents of a discreditable nature with civil or military authorities.  It provided that action would be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate and there have never been any automatic provisions for upgrading such discharges.

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’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the frequency of his misconduct and his overall record of undistinguished 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

___mvt__  ___jhl ___  ___rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2002074695	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/17	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/12/29	
DISCHARGE AUTHORITY	AR635-200/CH13	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.