MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 February 2002
         DOCKET NUMBER: AR2001063346

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Lester Echols		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 honorable.

APPLICANT STATES: In effect, that he was unjustly discharged under honorable conditions 1 month and a few days before his expiration of term of service (ETS). He also states that in his defense, he was just coming off of leave on the day he was charged with driving under the influence (DUI) and having his weapons in the car. However, his weapons had been checked out of the arms room, they were his personal weapons, and no DUI test was given. He further states that the charges were made months before his discharge; however, his command waited until just prior to his ETS to present him with the discharge.

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

He enlisted on 13 January 1978 for a period of 3 years, training as an infantryman and assignment to Korea. He completed his training and was transferred to Korea on 18 May 1978. He was advanced to the pay grade of E-3 on 13 January 1979 and departed Korea on 11 May 1979, en route to Fort Carson, Colorado. He was promoted to the pay grade of E-4 on 1 April 1980.

On 23 December 1980, he reenlisted for a period of 3 years and training as a hospital food service specialist.

On 31 August 1981, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay (suspended), and extra duty.

He departed Fort Carson on 28 September 1981, en route to Fort Sam Houston, Texas, to attend food service training. On 9 December 1981, NJP was imposed against him for disobeying a lawful order from a noncommissioned officer (NCO). His punishment consisted of a suspended reduction in grade, a forfeiture of pay, extra duty and restriction. Upon completion of his training he was transferred to Fort Hood, Texas, where he was assigned to a hospital unit.

On 29 September 1982, the applicant’s commander initiated a recommendation to bar the applicant from reenlistment. He cited as the basis for his recommendation, the applicant’s failure to respond to repeated counseling sessions, his disciplinary record and pending court-martial proceedings. The applicant elected not to submit matters in his own behalf and the bar to reenlistment was approved by the appropriate authority on 1 October 1982.

On 20 October 1982, he was convicted by a special court-martial of disobeying a lawful order and assaulting an NCO. He was sentenced to perform hard labor without confinement for 2 months and restriction for 2 months. The appropriate authority approved the sentence on 17 November 1982 and the applicant was reassigned to another unit on Fort Hood after his court-martial conviction.
On 29 April 1983, he was convicted by a summary court-martial of operating a vehicle on Fort Hood while drunk and of having two loaded and unregistered firearms in his possession. He was sentenced to a reduction to the pay grade of E-1, confinement at hard labor for 30 days, and a forfeiture of pay. The convening authority approved the sentence on 29 April 1983; however, he set aside the portion of the sentence pertaining to the forfeiture of pay on 9 May 1983.

On 22 September 1983, NJP was imposed against him for being absent without leave from 12 September to 14 September 1983. His punishment consisted of a forfeiture of pay, extra duty and restriction.

The applicant’s commander reviewed the applicant’s bar to reenlistment on 28 September 1983 and directed that it remain in place.

On 17 October 1983, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct, based on his disciplinary record. The commander’s request was returned by the brigade commander with instructions that the applicant would be considered for separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

The commander re-initiated his request on 27 October 1983. The applicant was again notified of the proposed action being initiated against him and after consulting with counsel, elected not to submit a statement in his own behalf.

The appropriate authority approved the recommendation on 14 November 1983 and directed that he be furnished a General Discharge Certificate. The applicant’s ETS at that time was 17 January 1984.

Accordingly, he was discharged under honorable conditions on 18 November 1983, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He had served 5 years, 9 months and 11 days of total active service and had 25 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under his command when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.
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 or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. 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.

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

4. The applicant has failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

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

___fe ___ ___mkp__ ___le ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063346
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/07
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1983/11/18
DISCHARGE AUTHORITY	AR635-200/CH13
DISCHARGE REASON	UNSAT PERF
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 572	144.4900/A49.00
2.
3.
4.
5.
6.