MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 
	     

	BOARD DATE:              8 July 1998               
	DOCKET NUMBER:     AC95-10333

	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.  The following members, a quorum, were present:




	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 he had no problems his first 2 and a half years of service; that his problems began when he complained about fellow soldiers using marijuana; and that he will submit evidence at an appearance before the Board.

COUNSEL CONTENDS:  Counsel was afforded the opportunity to provide input; however, did not submit additional contentions or issues. 

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

On 8 May 1979 the applicant entered the Regular Army for 4 years at the age of 19.  He successfully completed One Station Unit Training (OSUT) at Fort Leonard Wood, Missouri, was awarded military occupational specialty (MOS) 51R (Electrician), and assigned to Fort Carson, Colorado for his first permanent duty station.

The highest grade the applicant held on active duty was specialist/E-4 which he attained on 1 November 1981.  The applicant’s record contains no documented acts of valor, achievement, or service warranting special recognition.  However, it does include a history of disciplinary infractions including acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

On 30 March 1982 the applicant accepted an NJP with two specifications for failure to go to his appointed place of duty on 20 and 21 March 1982.  The resultant punishment included a reduction to private first class/E-3 (suspended); forfeiture of $150.00 (suspended); and 7 days of restriction and extra duty.  On 
8 June 1982 the suspended portions of the punishment imposed on the applicant in the NJP of 30 March 1982 pertaining to reduction and forfeiture were vacated; therefore, the applicant was reduced to the rank of private first class/E-3.  

Between 8 December 1981 and 27 May 1982 the applicant was formally counseled for a myriad of disciplinary infractions which included:  missing formation; marijuana residue in his desk; failure to follow instructions; missing appointments; failure to report as directed; leaving his guard post without permission; and disobeying a lawful order.

On 29 September 1982 the applicant’s unit commander notified the applicant he intended to initiate separation action on him, under the provisions of Chapter 13, 
AR 635-200 for unsuitability.  The unit commander cited as the specific reasons for his action as the applicant’s apathy, as evidenced by his inability to obey simple orders from his chain of command; his consistently belligerent attitude; and his frequent incidents of being disrespectful to superiors.  

On 6 October 1982 the applicant consulted counsel, and after being advised of his rights and the basis for the contemplated separation action, completed his election of rights and submitted a statement in his own behalf, in which he requested he be allowed to complete his term of service.

On 15 October 1982 the appropriate authority approved the separation action and directed the applicant receive a GD.  Accordingly, on 28 October 1982 the applicant was discharged after completing 3 years, 5 months, 21 days of active military service.

On 3 April 1998 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the discharge process was proper in all respects.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, provided the policy and outlined the procedures for separating individuals for unsuitability.

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 Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights; therefore, a personal appearance before this Board by the applicant is not warranted.

2.  The contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The Board found no evidence of arbitrary or capricious actions by the command.  The Board was satisfied that all requirements of law and regulation were met and the right of the applicant were fully protected throughout the separation process.  

3.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with 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 the aforementioned 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

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director