MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:      1 April 1998        
	DOCKET NUMBER:   AC96-09953

	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 honorable (HD).

APPLICANT STATES:  In effect, that he was denied his rights as a soldier and a man by a particular NCO; that the aforementioned NCO was prejudiced against him based on his color and the man he was; that he was given inappropriate personal duties to perform; that he attempted to use the chain of command to resolve his problem; that he was given the option to stay and work it out or to get out with a GD; and that he was not told he was being discharged with a GD based on poor attitude, appearance, and duty performance.

COUNSEL CONTENDS:  The applicant’s counsel has submitted no additional contentions for consideration in this case.

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

The applicant entered the Regular Army on 19 October 1974 for a period of 2 years at age 17.  He successfully completed basic training and advanced individual training (AIT) at Fort Polk, Louisiana.  Upon completion of AIT he was awarded military occupational specialty (MOS) 11B (Infantryman) and assigned overseas to Germany for his first permanent duty station.

The applicant’s record documents no individual acts of valor, achievement or service warranting special recognition, and indicates the applicant never advanced beyond the rank of private/E-2.

Between 12 June and 3 July 1975 the applicant was formally counseled on five occasions for his inability to make a constructive effort to achieve an acceptable level of performance.

On 19 August 1975 the applicant’s unit commander, based on the aforementioned record of counseling, notified the applicant of his intent to initiate separation action on him, under the provisions of paragraph 5-37, AR 635-200, the Expeditious Discharge Program (EDP).  The unit commander in his correspondence indicated his intent to recommend the applicant receive a GD, and cited his reason for the action as the applicant’s totally unacceptable job performance.  The unit commander also explained that the applicant’s apathetic attitude was causing serious morale problems within the unit and that the applicant had no potential as a soldier in a base line unit.

In his notification letter to the applicant the commander also advised the applicant he could expect to encounter substantial prejudice in civilian life based on the type of discharge being recommended, and of his right to consult counsel.

On 19 August 1975 the applicant acknowledged receipt of the commander’s notification of separation action and voluntarily consented to the discharge.  Additionally, he completed his election of rights by indicating, in effect, that he understood if he were given a GD that he could expect to encounter substantial prejudice; that if he declined to accept discharge he could be processed under the provisions of chapter 13, AR 635-200; that he could withdraw his acceptance of the discharge up until the date of discharge; and that he would submit a statement on his own behalf.

On 1 September 1975 the appropriate authority approved the applicant’s discharge and directed a GD.  Accordingly, on 
16 September 1975 the applicant was discharged after completing 10 months and 28 days of active military service.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-37, in effect at the time, established policy and prescribed procedure for separating members under the Expeditious Discharge Program (EDP).  The EDP provided for the separation of soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.

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 evidence of record does not support the applicant’s contention that he was not properly advised of the type and reasons for his separation action.  The record contains a 
1st endorsement, authenticated by the applicant, which clearly shows the applicant was afforded all rights associated with the separation action.  In addition, it documents that he was fully informed, by the chain of command, of the basis for his separation, to include the character of service being recommended, and the reasons for the discharge.

2.  There is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice and or arbitrary and capricious command action.

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




						Karl F. Schneider
						Acting Director