MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 
	BOARD DATE:             16 September 1998                 
	DOCKET NUMBER:     AC97-09387

	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 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); that his DD Form 214 be corrected to include his overseas service; and that his disciplinary record, to include his court-martial and nonjudicial punishment, be corrected.

APPLICANT STATES:  In effect, that he was not properly credited with his overseas service and that the disciplinary measures taken against him were unjust.

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

The applicant entered the Regular Army on 27 December 1971 for 3 years at the age of 19.

With the exception of the applicant’s initial contract for service, the available records on the applicant are temporary and do not document any aspects of the applicant’s service prior to 1974.  While it is possible that the applicant served overseas, and there is an obscure reference to overseas service in Germany contained on a Fort Hood Form 943 (AWOL Returnee Information Sheet),  there is not sufficient information or evidence of record on which to base granting the applicant overseas service credit.  The same Fort Hood document refers to the applicant’s receipt of a summary court-martial on 3 May 1972, however, the record contains no other supporting documentation of this event.

The temporary record does document that the applicant had an extensive disciplinary record which included his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on three separate occasions.  The applicant also had accrued 62 days of time lost due to AWOL for two different periods of AWOL:  the first from 19 August to 3 October 1974; and the second from 30 October to 16 November 1974.

On 22 July 1974 the applicant accepted his first NJP while at the Personnel Control Facility at Fort Dix, New Jersey for failure to repair.  His punishment included a forfeiture of $40.00 and 5 days of extra duty.

On 8 October 1974 while assigned to the Personnel Control facility at Fort Hood, Texas the applicant accepted his second NJP for being AWOL from 19 August to 3 October 1974.  The resultant punishment included a reduction in rank to private first class/E-3 and a forfeiture of $48.00.



On 18 November 1974 the applicant accepted the final NJP contained in the record for being AWOL from 30 October to 16 November 1974.  His punishment for this offense included a forfeiture of $75.00 per month for 2 months; 30 days of restriction; and 15 days of extra duty.  

On 6 December 1974 the applicant’s unit commander, based on the aforementioned disciplinary record, notified the applicant of his intent to initiate separation action, 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, as his reasons for taking the action, the applicant’s unsatisfactory performance since his assignment to the unit; and two separate counseling sessions, in which the applicant indicated he had no desire to perform any further military service.  The unit commander also explained that the applicant’s demonstrated lack of motivation and inability to adjust to the Army environment indicated he had no potential for further service.  

On 6 December 1974 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.  He also attested to his understanding that he could withdraw his acceptance of the discharge up until the date of discharge, and that he could submit a statement in his own behalf.

On 13 December 1974 the appropriate authority approved the applicant’s discharge and directed a GD.  Accordingly, on 16 December 1974 the applicant was discharged after completing 2 years, 10 months and 18 days of active military service, and accruing 62 days of time lost due to AWOL..

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.  There is no evidence in the available records to demonstrate that the applicant successfully completed an overseas tour of duty; or that the imposition of nonjudicial punishment and other disciplinary measures taken against him were unjust.  In the absence of evidence to the contrary, it is presumed that the DD Form 214 (Report of Separation From Active Duty), which was authenticated by the applicant at the time of his discharge, was accurate.  

2.  The applicant voluntarily consented to his administrative separation which was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  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.

3.  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.

4.  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