MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 August 2001
         DOCKET NUMBER: AR2001059029

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. John H. Kern		Chairperson
Mr. Thomas Lanyi		Member
Ms. Paula Mokulis		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 under honorable conditions be upgraded to honorable.

APPLICANT STATES: That he fell and hurt his back on 11 June 1981. He was hospitalized for about 21 days and on profile and crutches for about 6 months. He was a hardworking E-4 the day he fell but he had a personal conflict with his commander. In fact, he reported his commander to the Inspector General and the commander was relieved of command. He was punished for whistleblowing. He was made to do things against his profile and was reduced on trumped up charges. He was chaptered out after he chose not to reenlist. He has suffered with a bad back for over 20 years and he was advised to ask for a review of his discharge and for compensation. Supporting evidence is as listed on the attachment to the DD Form 149.

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

He enlisted in the Regular Army on 7 August 1979. He completed basic training and advanced individual training and was awarded military occupational specialty 12C (Bridge Crewman).

On 27 December 1979, the applicant was counseled regarding indebtedness.

On 27 July 1980, the applicant was arrested by civilian authorities for aggravated assault. He was released the same day on his own recognizance. On 12 September 1980, he was arrested by the same authorities for the same offense. He was released the same day on his own recognizance. These apparently were two separate offenses.

On 17 October 1980, the applicant was counseled regarding disobeying a superior commissioned officer.

On 27 February 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his place of duty. His punishment was a reduction to pay grade E-3, suspended; a forfeiture of $125.00 pay; 14 days extra duty; and 14 days restriction, suspended. He did not appeal the punishment. On an unknown date, the suspended punishments were vacated.

A Personnel Action form, DA Form 4187, shows that on 6 April 1981 the applicant was tried on the aggravated assault charges and the charges were dismissed.

A DA Form 4187 shows that on 9 April 1981 the applicant was arrested by civilian authorities for battery, unlawful use of a weapon, and terrorist threat.

On 1 June 1981, the applicant was found to be derelict in the performance of his duties in that he was drinking beer while on duty.

On 11 June 1981, the applicant was treated for a leg and back injury after falling off a bridge. A line of duty determination is not available.

On 30 June 1981, the applicant accepted NJP under Article 15, UCMJ for the 1 June 1981 incident. His punishment was confinement in the Correctional Custody Facility, suspended, and a reduction to E-1.

On 22 September 1981, the applicant received a locally approved bar to reenlistment. His two Article 15s and four counseling statements (different statements from those cited above) were cited.

Court documents show that on 2 October 1981 the applicant was found guilty by a civilian court of aggravated assault (committed on 27 July 1981) and unlawful use of weapons (committed on 27 July 1981). There is no evidence to show what happened to the 9 April 1981 charges. He was sentenced to an indeterminate term of imprisonment of not less than one year and not more than 5 years for the aggravated assault charge and to six months for the unlawful use of weapons charge. He apparently was placed on probation. He apparently indicated his desire to appeal but no appeal documentation is available.

On 16 February 1982, the applicant completed a mental status evaluation. He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

On 10 May 1982, the applicant’s commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, paragraph 5-31, expeditious discharge. It was recommended he receive a general under honorable conditions discharge. The applicant acknowledged notification of the action and voluntarily consented to the discharge.

On 17 May 1982, the applicant opted not to have a separation medical examination.

On 7 June 1982, the appropriate authority approved the recommendation and directed the applicant be awarded a character of service of under honorable conditions and that he be transferred to the Individual Ready Reserve (IRR).

On 10 June 1982, the applicant was released from active duty and transferred to the IRR with a character of service of under honorable conditions in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 5-31. He had completed 2 years, 10 months, and 4 days of creditable active service and had no lost time.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The pertinent paragraph in chapter 5 provides that members who have completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential may be discharged. It provides for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action becomes necessary. No member will be discharged under this program unless he/she voluntarily consents to the proposed discharge. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment with due consideration for the member’s age, length of service, grade and general aptitude. A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

The mission of the Veterans Benefits Administration is to provide benefits and services to veterans and their families in a responsive, timely and compassionate manner in recognition of their service to the nation. Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

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 this requirement.

2. The applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He voluntarily accepted his separation.

3. The Board notes that the applicant had several discreditable incidents involving both military and civilian authorities throughout his service. The type of discharge given was appropriate considering his overall military record.

4. It appears the applicant may not have sought treatment from the VA. If the VA determines that his injury was service connected, they may award him disability compensation.

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

__jhk___ __tl____ __pm____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059029
SUFFIX
RECON
DATE BOARDED	20010823
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19820610
DISCHARGE AUTHORITY	AR 635-200, para 5-31
DISCHARGE REASON	A07.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.