MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 July 2001
         DOCKET NUMBER: AR2001055159

         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.

Mr. Carl W. S. Chun		Director
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Margaret V. Thompson		Member
Mr. William D. Powers		Member

         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)

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APPLICANT REQUESTS: That his general discharge be upgraded to an honorable discharge.

APPLICANT STATES: That his discharge was based on an isolated incident. He states that on the day after coming out of 30 days of field maneuvers his unit was told that they had done a fine job and the commander and everyone above was very pleased. He further states that the vehicles were normally cleaned and stored; however, because they had done such a good job during the maneuvers, they were told that the vehicles did not have to be cleaned at that time. He goes on to state that when he returned to duty a few days later he had a new commanding officer who stated, in effect, that he was going to straighten the unit out. He states that the commander only straighten the unit out to benefit him which meant that they had to do everything better than everyone else. He states that after so many incidents he confronted his commanding officer about some of the things that he was having the unit to do. He continues by stating that after he confronted his commanding officer, people started talking so the commander believed that he (the applicant) was spearheading some type of operation and he was called to the commander’s office. He states that his commanding officer told him that he was going to make things hard for him so he sought assistance through legal aide. He states that when he returned from legal aide his commanding officer stated that he was going to make his life a living hell and he was confined to the company area, given extra duty and anything else the commander could do to him he did. He states that he stuck it out as long as he could and when he had enough evidence of wrongdoing he brought it to his commander’s attention and the commander knew that it was enough evidence that he could have been in a lot of trouble. He states that his commander offered him a general discharge to get him out of his hair and he was told that his discharge could be upgraded after 7 years. He concludes by stating that he is now 45 years old with two life threatening diseases and he would have given his life for his country then and now.

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

On 13 May 1975, he enlisted in the Army for 3 years in the pay grade of E-1 and he successfully completed his training as a lineman. On 13 September 1975, he was promoted to the pay grade of E-2.

The applicant was counseled on 9 January 1976 because of his attitude and for failure to follow instructions. He was told by his first sergeant that unless he took action to correct his deficiencies, consideration might be given to his being separated from the Army under the appropriate Army Regulation.




He was counseled on 11 February 1976 for being late for formation. In this incident, his commanding officer told him that unless he took action to correct his deficiencies, consideration might be given to his being separated from the Army under the appropriate Army Regulation.

Nonjudicial punishment (NJP) was imposed against the applicant on 20 February 1976 for failure to obey a lawful order. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 23 March 1976, he was counseled for being late for formation and for not getting a haircut. He was told by his commanding officer that such action could result in the issuance of an undesirable discharge and if he was issued a less than honorable discharge he would ineligible for many or all veterans benefits.

He had NJP imposed against him on 22 June 1976 for being absent from his place of duty from 4 June until 7 June 1976, for being absent from his place of duty on 17 May 1976, for disobeying a lawful order from his superior noncommissioned officer and for appearing at formation out of proper uniform. His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 30 June 1976, the applicant was notified that action to eliminate him from the Army under the Expeditious Discharge Program (EDP) had been initiated. He acknowledged receipt of the notification and on 1 July 1976 he submitted a voluntary consent to be discharged under the provisions of Army Regulation
635-200, chapter 5 under the EDP based on his failure to maintain acceptable standards for retention.

The appropriate authority approved the request for discharge on 14 July 1976. Accordingly, on 21 July 1976, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 5 under the EDP. He had completed 1 year, 2 months and 9 days of total active service and he was furnished a General Discharge Certificate.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

The Department of the Army began testing the EDP in October 1973. In a message dated 8 November 1974 the Deputy Chief of Staff for Personnel announced the expansion of the EDP. The program provided for the separation of soldiers whose acceptability, performance of duty and/or potential for continued effective service fall below the standards required for retention in the Army.
Soldiers may be separated under this program when subjective evaluation of their commanders identifies them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. Soldiers had to consent to separation under this program in order for commanders to separate them under the provision of the EDP. Otherwise, a commander was required to separate soldiers under other provisions of the regulation which in most cases resulted in an other than honorable 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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3. The Board has noted the applicant’s contentions. However, they are unsubstantiated by the evidence of record. The evidence of record does not show that he was discharged based on an isolated incident. The record clearly shows that he was counseled three times and he had had NJP imposed against him twice as a result of his acts of misconduct. There is no evidence of record that shows that his commanding officer was trying to make his life a living hell or that he was told that his discharge could be upgraded in 7 years. He was issued a general discharge and considering his numerous acts of misconduct it does not appear that the type of discharge he received was too severe.

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 this 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

__mvt___ ___wdp__ __js ____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001055159
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/07/24
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1976/07/21
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	488
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 513	144.2700.0000
2.
3.
4.
5.
6.