MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 October 2002
	DOCKET NUMBER:   AR2002075118

	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. Karol A. Kennedy		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Lutz		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that he does not believe his behavior was bad enough to warrant an undesirable discharge.  He further states that he desires an upgrade because he does not have an income and is homeless.

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

He enlisted in Detroit, Michigan, on 10 October 1972, for a period of 2 years and was transferred to Fort Knox, Kentucky, to undergo his basic combat training (BCT).  

On 2 November 1972, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay.

He completed his BCT and was transferred to Fort Lee, Virginia, to undergo training as a cook.  He completed his training and was transferred to Germany on 4 April 1973.

On 5 October 1973, he was convicted by a special court-martial of failure to obey a lawful order from a commissioned officer, of disobeying a lawful order from a superior noncommissioned officer, of stealing $12.00 from another soldier by use of force and assaulting another soldier with intent to do bodily harm.  He was sentenced to confinement at hard labor for 140 days, reduction to the pay grade of E-1 and a forfeiture of pay.  He was initially sent to the United States Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement and was subsequently transferred to Fort Knox on 29 January 1974 to serve the remainder of his confinement.

On 28 March 1974, NJP was imposed against him for being absent without leave (AWOL) from 2 March to 19 March 1974.  His punishment consisted of an oral reprimand, a forfeiture of pay, restriction and extra duty.

On 4 June 1974, NJP was imposed against him for wrongfully appearing in a public place in an improper uniform and being disorderly.  His punishment consisted of a forfeiture of pay (suspended for 60 days).

On 13 September 1974, NJP was imposed against him for being AWOL from 31 August to 2 September 1974.  His punishment consisted of a detention of pay for 3 months and restriction for 14 days.

On 6 November 1974, the applicant’s commander initiated a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unfitness, 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, disorderly conduct and abusive language towards superiors, his continual and deliberate shirking of his duties, his apathetic attitude and his failure to respond to numerous counseling sessions and rehabilitation efforts by the command.

After consulting with counsel, the applicant waived his right to appear before a board of officers and elected not to submit a statement in his own behalf.

The appropriate authority ( a major general) approved the recommendation for discharge on 12 February 1975 and directed that the applicant be furnished an Undesirable Discharge Certificate. 

The applicant again went AWOL from 21 February 1975 and was discharged in absentia on 5 March 1975, under the provisions of Army Regulation 635-200, chapter 13, for unfitness, due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 1 year, 11 months and 29 days of total active service and had 148 days of lost time due to AWOL and imprisonment.

He applied to the Army Discharge Review Board (ADRB) on 6 June 1977, for an upgrade of his discharge.  He contended at that time that he was discharged unjustly because his commanders were prejudiced against him.  He was granted a personal appearance before the ADRB traveling panel in Detroit, Michigan, on 8 November 1978 and failed to appear.  On 29 March 1979, the ADRB conducted a records only review of his discharge and determined that his separation was equitable and proper and that no basis for relief existed. His request was denied on 9 April 1979.  

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 unfitness, 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 unfitness when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions was then and currently is normally 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.  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

__kak___  ___tap___  __bjl____  DENY APPLICATION

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

INDEX

CASE ID	AR2002075118	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/29	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/03/05	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.