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ARMY | BCMR | CY1997 | 9711421
Original file (9711421.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his discharge be upgraded to an honorable discharge.
APPLICANT STATES : In effect, that he completed 33 months of his 36 month enlistment. He believes if he had been allowed to complete his contract, he would have received an honorable discharge. He is now 40 years old and has been disabled for 15 years. He would like his discharge upgraded so he can help his mother.

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

He enlisted in the Regular Army on 12 January 1976 for 3 years. He did not complete 95B (Military Policeman) advanced individual training (AIT) but did complete 36K (Field Wireman) AIT.

The applicant had no record of any disciplinary actions until 27 June 1978, when he was convicted by a summary court-martial of disobeying a lawful order; being disrespectful in language towards his superior non-commissioned officer; and being derelict in the performance of his duties. He was sentenced to be reduced to pay grade E-1, to forfeit $265 pay for 1 month and to confinement at hard labor for 30 days.

On 3 October 1978, the Retraining Brigade, Fort Riley, KS commander initiated separation action under the provisions of Army Regulation 635-200, Chapter 14, for frequent acts of a discreditable nature.

The applicant acknowledged the separation action and submitted no statements in his own behalf.

On 10 October 1978, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 13 - 22 September 1978; being absent from bed check and from his unit; disobeying a lawful order; being disrespectful in language towards his superior non-commissioned officer; and breaking restriction. He was sentenced to confinement at hard labor for 30 days and to forfeit $260 pay for 1 month.

On 26 October 1978, the applicant waived his right to a separation physical examination.

On 26 October 1978, the appropriate authority approved the recommendation for separation and directed the applicant receive a discharge under other than honorable conditions (UOTHC).

On 27 October 1978, the applicant was discharged in pay grade of E-1 under the provisions of AR 635-200, Chapter 14. He had completed 2 years, 7 months and 19 days of creditable active service and had 57 days lost time (9 days AWOL and 48 days 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, frequent acts of a discreditable nature, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

On 14 November 1980, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to a general under honorable conditions discharge. The upgrade was based on a missing mental status evaluation, probably caused by the applicant waiving his separation physical examination, that may have been prejudicial to the applicant’s separation.

 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. 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. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations.

3. Considering the applicant’s conviction by two summary courts-martial for numerous infractions of military discipline, the characterization of his discharge as UOTHC was considered appropriate.

4. The Army Discharge Review Board upgraded the applicant’s discharge to a general under honorable conditions discharge based upon a matter that may have been prejudicial at the time of his separation. The applicant has submitted no additional evidence to show why his discharge should be further upgraded to fully honorable.

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

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