MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 4 March 1998
DOCKET NUMBER: AC97-09832
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 discharge under other than honorable conditions (UOHC) be upgraded to honorable.
APPLICANT STATES: In effect, that he was discriminated against because he had a permanent physical profile for his knee.
EVIDENCE OF RECORD: The applicant's military records show:
On 25 March 1977 the applicant was ordered to active duty, by Orders 57-10, issued by Headquarters First United States Army, Fort George G. Maryland, effective 2 May 1977 for a period of 17 months and 13 days based on his non participation with his Army National Guard Unit. After completing in processing at the reception station at Fort Jackson, South Carolina he was assigned to Fort Campbell, Kentucky for duty. At the time he was ordered to active duty the applicant had completed 26 months of National Guard Service and held MOS 76Y (Supply Specialist).
On 22 November 1977 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for violation of Article 91 (disobeying a lawful order). His punishment for this offense was forfeiture of $50.00.
On 3 January 1978 the applicant accepted an NJP for ten specifications of violating Article 86 (AWOL). His punishment was reduction in rank to private/E-1 and assignment to the correctional custody facility for 30 days.
On 2 February 1978 the applicant was tried by a special court-martial and found guilty of two specifications of violation of Article 91 (disobeying a lawful order). He was sentenced to confinement at hard labor for 30 days.
The applicant had an extensive record of counseling at the correctional custody facility, between 11 March and 30 March 1978, for a myriad of disciplinary infractions which include: signing in late; poor military bearing; possession of contraband (knife); possession of contraband (food); failure to follow instructions; security violations; and disobeying orders.
On 4 April 1978 the applicants unit commander recommended the applicant be separated under the provisions of Chapter 14, AR 635-200, for misconduct/frequent incidents of discreditable nature.
On 7 April 1978 the applicant consulted counsel and completed his election of rights by waiving his right to: consideration of his case by a board of officers; personal appearance before a board of officers; representation by counsel; and he also elected not to submit a statement in his own behalf.
The appropriate authority approved the separation action in an undated endorsement and directed the applicant be issued a UOHC discharge. Accordingly, on 18 April 1978 the applicant was discharged after completing 10 months and
22 days of active military service and accruing 25 days of time lost due to AWOL and confinement.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.
On 21 February 1980 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge.
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 found no evidence of record or independent evidence submitted by the applicant supporting his contention that he was discriminated against based on his physical profile limitations and further found no factors in mitigation which would warrant an upgrade to his discharge.
2. 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
Karl F. Schneider
Acting Director
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