MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:      1 April 1998                        
	DOCKET NUMBER:   AC97-09949

	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:




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)

APPLICANT REQUESTS  In effect, that his undesirable discharge (UD) be upgraded to honorable.

APPLICANT STATES:  In effect, that his characterization of service and his discharge date were incorrect.  He further claims his service should have been uncharacterized.

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

The applicant entered the Regular Army on 24 August 1971 for a period of 3 years at the age of 17.  He successfully completed basic training at Fort Polk, Louisiana and advanced individual training (AIT) at Aberdeen Proving Grounds, Maryland.  Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 63F (Senior Recovery Vehicle Operator) and was assigned overseas to Germany for his first permanent duty station.

The applicant's record indicates that the highest rank he held while on active duty was private/E-2.  His record also indicates the only award earned was the National Defense Service Medal.  There are no other significant acts of valor, achievement, or service meriting special recognition.  However, there is an extensive record of disciplinary infractions.

On 14 March 1972 the applicant underwent a trial by summary court-martial for violation of Articles 86 of the UCMJ for a period of AWOL between 14 November 1971 and 22 January 1972. The applicant was found guilty and his sentence consisted of confinement at hard labor for 30 days, and forfeiture of $190.00 for one month.

On 17 March 1972 the applicant underwent a second summary court-martial for two charges: the first charge was for a violation of Article 86 for a period of AWOL between 15 January 1973 and 26 January 1973; the second charge was a violation Article 90 for disobeying a lawful order from a superior commissioned officer by refusing to board a vehicle for the Grafenwehr training area. The applicant was found guilty and the resultant punishment consisted of reduction to the grade of private/E-1, forfeiture of $200.00 for one month, and restriction for 30 days.

On 22 March 1973 the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for violation of Article 128 (unlawfully threatening another soldier with a knife).  His punishment for this offense was forfeiture of $76.00 for one month.

On 27 April 1973 the applicant’s unit commander prepared a bar to reenlistment recommendation on the applicant and cited his record of courts-martial as the reason and on 10 May 1973 the appropriate authority approved the action and imposed the bar.

The applicant also had been counseled on four occasions between 5 December 1972 and 1 April 1973 for the following disciplinary infractions: insubordination to a superior officer; poor attitude; refusing to run and insubordination; and poor overall attitude and the effects of a less than honorable discharge.

On 24 April 1973 the applicant’s unit commander, recommended the applicant be discharged; under the provisions of paragraph 13-5a, AR 635-200, for unfitness.  The commander cited the applicant’s record of courts-martial, NJP, and overall poor performance in the unit as the reasons for his action.

On 25 April 1973 the applicant acknowledged receipt of the separation action, consulted counsel, and indicated his understanding of the contemplated reason for his discharge. His completed election of rights documented the following decisions by the applicant: he waived consideration of his case before by a board of officers; he waived personal appearance before a board of officers; he waived representation by counsel; and he submitted a statement on his own behalf.

On 1 May 1973 the first intermediate level commander recommended approval of the separation action and on 11 May 1973 the second level intermediate level commander also recommended approval of the separation action.

On 23 May 1973 the appropriate authority approved the separation action and directed the applicant be discharged with a UD.  Accordingly, on 31 May 1973 the applicant was discharged and issued a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which he authenticated.  The DD Form 214 showed that the applicant was discharged after completing 1 year, 
6 months, and 17 days of active military service and accruing 80 days of time lost due to AWOL and confinement.

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 13, then in effect, provided the policy and outlined the procedures for separating individuals for unfitness.

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 and the independent evidence submitted by the applicant does not support the applicant’s contentions that the date of his discharge and the characterization of service he was given were in error.  The Board noted the applicant’s record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which was authenticated by the applicant which contained both the date of discharge and the fact that the applicant received a UD.

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