MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:

         BOARD DATE:
         DOCKET NUMBER: AC97-07768

         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:

Mr.			Chairperson
Mr.			Member
Mr.			Member

         Also present, without vote, were:

Mr.	Loren G. Harrell		Director
Mr.	Joseph A. Adriance		Analyst

         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)

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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 was discharged because of his physical profile and was threatened with discharge if he didn’t come off the profile; that he had already served over 3 years and 5 months of honorable service prior to his discharge; and that he could have left the Army with a medical discharge earlier but wanted to finish his enlistment.

COUNSEL CONTENDS: The applicant’s counsel has not submitted additional issues or contentions for consideration.

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

On 11 April 1975 the applicant entered the Regular Army for 4 years at the age of 18. 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) 11C (Indirect Fire Crewman) and assigned to Fort Ord, California for his first permanent duty station.

The highest grade the applicant held on active duty was private first class/E-3 which he attained on 1 March 1978. 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 a special court-martial and acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on three separate occasions.

On 4 February 1977 the applicant accepted an NJP for disobeying a lawful order from by a noncommissioned officer; missing formation; and for being absent without authority from his appointed place of duty. His punishment was reduction to private/E-2; forfeiture of $97.00; and 14 days of restriction and extra duty.

On 11 April 1977 the applicant was tried by special court-martial for two charges, containing a total of three specifications, of violating Articles 86 and 134 of the UCMJ. The first charge was for being AWOL on 24 February 1977; the first specification of the second charge was for communicating a threat to a superior noncommissioned officer; and specification 2 was also for communicating a threat to a superior noncommissioned officer.

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The applicant was found guilty of both charges and all specifications, with some not guilty findings to some word exceptions to specifications 1 and 2 of the additional charge (charge 2). The resultant sentence included confinement at hard labor for 45 days, and reduction to private/E-1.

On 11 September 1977 the applicant accepted an NJP for failure to go to his appointed place of duty and for leaving his appointed place of duty without authority. The resultant punishment included a suspended reduction to
private/E-2; forfeiture of $103.00; and 14 days of extra duty.

On 19 October 1978 the applicant accepted an NJP for failing to go to his prescribed place of duty. His punishment for this offense was reduction to private/E-2; forfeiture of $108.00; and 14 days restriction.

On 10 October 1978 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 milingering on daily sick call; his having a negative impact on the morale of the unit; and his lack of desire to become a proficient soldier.

Also on 10 October 1978 the applicant consulted counsel, and after being advised of his rights and the basis for the contemplated separation action, elected to waive the following rights: to have his case heard by a board of officers; to personally appear before a board of officers; to be represented by counsel; and he elected not to make a statement in his own behalf.

On 24 October 1978 the applicant underwent a full physical examination. Medical authorities evaluated the applicant’s physical condition, to include the lower back pain he claimed he had based on a bullet being lodged in his back. The result of the physical examination was that the applicant was cleared for separation, under the provisions of AR 635-200, and was awarded a physical profile of P-1, U-1, L-1, H-1, E-1, and S-1, which indicated no permanent physical disability. The applicant authenticated the physical examination and there is no record of his questioning or contesting the results. Additionally, the applicant authenticated a DA Form 3082 (Statement of Medical Condition), at the time of his separation, which indicated he knew of no change in his medical condition since the date of his physical examination.

On 3 November 1978 the appropriate authority approved the separation action and directed the applicant receive a GD. Accordingly, on 9 November 1978 the applicant was discharged after completing 3 years, 5 months, 22 days of active military service, and accruing 37 days of time lost due to confinement.

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On 24 July 1989 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 noted the applicant’s contentions that he was offered a medical discharge, and that his discharge was the result of his physical profile limitations, which he documented with a 90 day temporary profile dated 3 April 1978. However, the Board determined the applicant’s physical limitations were not factors in his discharge. The evidence of record shows the applicant was given a complete physical examination on 24 October 1978 in which he was cleared for separation by competent medical authorities. There is no evidence of record, or independent evidence submitted by the applicant that supports that this physical examination was not properly conducted. The record shows the applicant authenticated the physical examination with his signature, and that he signed a DA Form 3082 (Statement of Medical Condition), at the time of his separation, which indicated he knew of no change in his physical condition since the date of his physical examination.

2. The Board examined the applicant's record of service during the period of enlistment under review. There was a full consideration of all faithful and honorable service as well as infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board concluded that the discrediting entries in the applicant's record were not mitigated by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed.

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.

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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