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ARMY | BCMR | CY1997 | 9710161
Original file (9710161.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:

         BOARD DATE: 18 March 1998
         DOCKET NUMBER: AC97-10161

         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. John N. Sloan Chairperson
Mr. Thomas N. Kuhn Member
Ms. Member

         Also present, without vote, were:
Mr. Karl F. Schneider Acting 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)

APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to honorable.
APPLICANT STATES : In effect, that he has killed every devil on the west coast, at Ludenhoff Kaserne, in Vietnam, and in Gary, West Virginia. Additionally, he claims to have initially enlisted in the Marine Corps but his score was a
26-cat-4.

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

The applicant entered the Regular Army on 1 August 1972 for a period of 3 years at the age of 17. He successfully completed basic training at Fort Jackson, South Carolina and advanced individual training (AIT) at Fort Lewis, Washington. Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 12C (Float Bridge Specialist) and remained assigned to Fort Lewis for his first permanent duty station.

 The applicant's record indicates that the highest rank he held while on active duty was specialist/E-4 which he attained on
2 April 1974 while assigned in Germany. His record also indicates he earned 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 19 January 1973 the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for violation of Article 144 (having in his possession one or more ounces of marijuana). His punishment for this offense was forfeiture of $75.00.

On 18 April 1974 the applicant accepted his second NJP for
two violations of Article 89; the first for disrespect toward a 2nd Lieutenant, a superior commissioned officer; and the second for disrespect toward a Lieutenant Colonial, a superior commissioned officer, both incidents took place on 17 April 1974. The resultant punishment was reduction to private first class/E-3, forfeiture of $80.00, and 7 days restriction.
On 2 February 1975 the applicant underwent a trial by special court-martial for four charges containing five specifications of violation of Articles 92, 134,and 128 of the UCMJ. The applicant was found guilty of communicating a threat, unlawfully striking a private, assaulting a specialist, and unlawfully striking a private first class. The approved sentence consisted of confinement at hard labor for 6 months, forfeiture of $100.00 per month for 6 months, and reduction to private/E-1.

On 16 April 1975 his company commander, at the United States Army Retraining Brigade, Fort Riley Kansas, recommended the applicant be discharged; under the provisions of paragraph 13-5, AR 635-200, for unfitness based on frequent incidents of a discreditable nature. The commander indicated that the applicant had been sent to the retraining brigade for correctional training and treatment necessary to return him to duty as a well trained soldier with an improved attitude. However, he concluded the applicant’s behavior and actions precluded accomplishment of that objective. On the same date the applicant acknowledged receipt of the separation action notification, consulted counsel, and requested his case be heard by an administrative separation board.

On 6 May 1975 an administrative separation board convened at which the applicant personally appeared with counsel. The Board found that the applicant was in violation of numerous acts meeting the criteria of frequent discreditable acts under the auspices of AR 635-200. Additionally, the Board concluded that his time at the retraining brigade further evidenced his unwillingness to comply in order to meet standards, and in fact, contributed further discreditable acts. The Board recommended the applicant be eliminated from the service for unfitness with a UD.

On 12 May 1975 the appropriate authority approved the findings and recommendations of the Board of Officers and directed the applicant be discharged with a UD. Accordingly, on 13 May 1975 the applicant was discharged after completing 2 years,
6 months, and 2 days of active military service and accruing 101 days of time lost due to confinement.

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. Individuals separated for unfitness would normally receive a UD.

On 8 March 1977 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the applicant was properly discharged.

 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. The Board examined the applicant’s record of service and found no sufficiently mitigating factors warranting an upgrade of 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.

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

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