MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 November 2001
         DOCKET NUMBER: AR2001062362

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. John P. Infante		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: That he requested a discharge and it was approved; however, he was not informed of the type of discharge until he sat down to sign the discharge. He contends that because he was eager to get out, he signed his discharge without legal representation. In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge).

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

The applicant enlisted on 25 August 1972 for a period of 3 years. He successfully completed basic and advanced individual training in his requested military occupational specialty, field wireman.

While in advanced individual training, on 10 January 1973, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty at the prescribed time. His punishment consisted of a forfeiture of pay and 14 days of restriction and extra duty.

On 14 May 1973, the applicant was convicted by a summary court-martial of being disrespectful in language toward his superior noncommissioned officer. He was sentenced to forfeit $200 per month for 1 month and to serve at hard labor without confinement for 30 days. On 14 May 1973, the convening authority approved the sentence.

On 29 May 1973, nonjudicial punishment was imposed against the applicant for disobeying a lawful command. His punishment consisted of a reduction to E-1 and 14 days of restriction.

On 29 June 1973, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 4 June 1973 to 11 June 1973. He was sentenced to forfeit $100 per month for 1 month and confinement at hard labor for 10 days. On 29 June 1973, the convening authority approved the sentence.

Between 10 January 1973 and 19 June 1973, the applicant was counseled on
15 occasions for various infractions which include unsatisfactory performance, breaking restriction, a negative attitude, sleeping on duty and disobeying a lawful order.

On 3 July 1973, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unfitness for frequent discreditable incidents and an established pattern for shirking. He cited that the applicant had been counseled repeatedly concerning his inability to adapt to social and military standards of conduct and that he had been transferred between sections at least 3 times in order to afford him the opportunity to improve his performance.

On 6 July 1973, after consulting with counsel, the applicant waived his rights to a hearing of his case before a board of officers, representation by counsel and elected not to make a statement in his own behalf. He also acknowledged that he understood that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

On 17 August 1973, the separation authority approved the recommendation for separation and directed that the applicant be furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 7 September 1973 under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to an established pattern of shirking. He had served
11 months and 13 days of total active service with 30 days lost due to AWOL and confinement.

On 28 May 1975 and 21 November 1979, the Army Discharge Review Board (ADRB) denied his requests for upgrade of his discharge.

Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability. Chapter 13, paragraph 13-5a(4), provides for discharge due to unfitness because of an established pattern for shirking. The regulation also states that an individual separated by reason of unfitness will normally be furnished an undesirable discharge certificate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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 Board considered the applicant’s contentions that he was not informed of the type of discharge until he sat down to sign the discharge and that he signed his discharge without legal representation. However, evidence of record shows that on 6 July 1973 the applicant consulted with counsel and waived all of his rights. He also acknowledged that he understood that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

2. The Board reviewed the applicant’s record of service which included two nonjudicial punishments, two summary court-martial convictions and 30 days lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

3. 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. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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

RVO____ JPI_____ WDP_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062362
SUFFIX
RECON
DATE BOARDED	20011129
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19730907
DISCHARGE AUTHORITY	AR 635-200, Chapter 13
DISCHARGE REASON	Unfitness due to an established pattern of shirking
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.