MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 January 2003
	DOCKET NUMBER:   AR2002076359

	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. Margaret K. Patterson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Mae L. Bullock		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 to a discharge that will afford him care and benefits by the Department of Veterans Affairs (VA).

APPLICANT STATES:  In effect, that it has been 20 years since his discharge and he believes that he should be entitled to care at the VA for a service connected disability he received while in the service and for which he was treated (deafness in right ear).

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

He enlisted on 10 February 1982, for a period of 4 years and training as an electrician.  He was transferred to Fort Leonard Wood, Missouri, to undergo his training.

On 22 April 1982, nonjudicial punishment was imposed against him for urinating on another soldier’s bunk.  His punishment consisted of forfeiture of pay and correctional custody for 4 days (suspended for 30 days).

He completed his training and was transferred to Fort Benjamin Harrison, Indiana, on 21 June 1982.  He was advanced to the pay grade of E-2 on 10 August 1982.

On 15 October 1982, he was convicted by a special court-martial of two specifications of aggravated assault.  He was sentenced to be reduced to the pay grade of E-1 and 2 months of confinement at hard labor.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his confinement.  He was advised upon his arrival that successful completion of the Retraining Program would provide him an opportunity for return to duty or to be discharged under honorable conditions.  On 10 November 1982, the convening authority suspended that portion of his sentence pertaining to confinement at hard labor for a period of 3 months, unless sooner vacated.  

The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214), which shows that he was discharged under other than honorable conditions on 24 February 1983, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He had served 1 year, 1 month and 15 days of total active service.

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 14 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 and still is 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 the absence of evidence to the contrary, it must be presumed that 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 therefore were appropriate considering all of the available facts of the case.

3.  The applicant was sent to the Army Retraining Brigade, a unit that was designed to rehabilitate soldiers during a sentence of confinement with the hopes of returning soldiers back to duty as productive members and afford them an opportunity to serve out the remainder of their service honorably.  It appears that the applicant chose not to take advantage of the opportunity afforded to him at the time.

4.  Although the Board has no jurisdiction over benefits administered by the VA, the inability to receive such benefits is not a sufficient basis in itself to warrant an upgrade of his discharge, especially when compared to his otherwise undistinguished record of service. 

5.  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.

6.  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

__mb ___  ___mkp__  __jlp____  DENY APPLICATION

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

INDEX

CASE ID	AR2002076359	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/14	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1983/02/24	
DISCHARGE AUTHORITY	AR635-200/CH14	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.