MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 April 2002
         DOCKET NUMBER: AR2001064332

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Roger W. Able		Member
Ms. Karen Y. Fletcher		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 under other than honorable conditions (UOTHC) discharge be upgraded to a fully honorable discharge.

APPLICANT STATES: That while he was assigned to Germany, he was convicted by a summary court-martial without any evidence and assigned to the US Army Retraining Brigade (USARB), Fort Riley, Kansas. He was not told that if he appealed his nonjudicial punishment (NJP) it would result in a summary court-martial. He also states that he had a "profile" for second-degree frostbite that prohibited him from engaging in any physical exercise or exposure to cold weather. Additionally, he states that he was offered a discharge under the provisions of chapter 13, Army Regulation (AR) 635-200 on the pretense that it would be upgraded to an honorable discharge after 5 years. He submits in support of his request copies of his DD Forms 214 (Report of Separation from Active Duty), dated 21 July 1978 and 29 October 1981; a Rating Decision from the Department of Veterans Affairs (DVA), dated 3 January 1989; court-martial orders, dated 10 August 1981; NJP proceedings, dated 25 February 1981 and
10 September 1981; training progress notes; a social work in-processing form; and trainee interview summary sheets from the USARB dating between August-October 1981.

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

That on 9 September 1977, prior to the period of enlistment under review, the applicant enlisted in the United States Army Reserve (USAR) and served honorably from 9 September 1977-15 November 1978. During that period, he was ordered to active duty for training in military occupational specialty (MOS) 91B (Medical Specialist) from 31 March-21 July 1978.

On 16 November 1978, the applicant enlisted in the Delayed Entry Program (DEP). On 9 January 1979, he was separated from the DEP. On 10 January 1979, he enlisted in the Regular Army (RA) for a period of 4 years, training in MOS 36K (Field Wireman), and station of choice - Fort Riley. He completed the required training and was awarded MOS 36K. On 13 March 1979, he was assigned to Fort Riley for permanent duty.

On 17 January 1980, NJP under the provisions of Article 15, Uniform Code of Military (UCMJ), was imposed against the applicant for being absent from his unit from 24 December 1979-3 January 1980. His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of $150.00 pay per month for 2 months and to serve 15 days at the Correctional Custody Facility. On 14 July 1980, he was assigned to Germany.

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On 25 February 1981, NJP was imposed against the applicant for failure to go to his appointed place of duty on 6, 7, 15, 16 and 20 January 1981; and for disobeying a lawful order given by a noncommissioned officer on 18 January 1981. His punishment included forfeiture of $279.00 pay per month for 1 month, and to serve in the Correctional Custody Facility for 15 days. On the same date, the applicant appealed his NJP action citing the frostbite that he experienced during a field training exercise in December 1980.

On 11 March 1981, the applicant's commander stated in an endorsement to the reviewing authority that the applicant was only required to work within the limits of his profile. He was required to ride ten minutes in the back of a 2 1/2 ton truck to a tactical site and work in an indoor environment and that his profile did not exclude this activity. He also stated that the applicant asked for a second chance and that he believed 15 days in correctional custody would assure him a second chance and that it would motivate him to be a more productive soldier upon his return to his unit. He recommended that the applicant's appeal be denied. The "profile" is not a matter of record.

On 12 March 1981, the judge advocate found that the NJP proceedings were conducted in accordance with law and regulation and the punishment imposed was not disproportionate to the offenses committed. The approval authority considered the matters presented on appeal and denied the applicant's appeal. On 14 March 1981, the applicant authenticated his NJP action to indicate that he had been informed of the action taken on his appeal.

On 30 July 1981, the applicant was convicted by a summary court-martial of failure to go to his appointed place of duty on 11 (twice), 12 and 23 June 1981; and on 16 July 1981 (twice). He was sentenced to forfeiture of $334.00 pay per month for 1 month, confinement at hard labor for 30 days at the USARB, and reduction from pay grade E-2 to pay grade E-1.

On 10 September 1981, while the applicant was at the USARB, NJP was imposed against him for failure to follow a lawful order given by a commissioned officer on 6 September 1981. His punishment included forfeiture of $25.00 pay for 1 month and 5 days’ extra duty and restriction.

On 2 October 1981, the applicant appeared before the USARB Cadre Review Board to determine whether he should be recommended for discharge due to continued acts of misconduct while at the USARB. On the same date, the Cadre Review Board determined that the applicant should be separated under the

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provisions of chapter 14, AR 635-200. The basis cited for the recommendation was the applicant's three NJP actions, his court-martial action, his pending failure to repair charge, his unsatisfactory weekly ratings, and his failure to exert the necessary effort to meet the required standards. He also had reprimands for being late to formation on several occasions, for two security violations and for playing dice for money.

On 6 October 1981, the applicant's commander at the USARB officially notified him that he was being recommended for discharge under the provisions of chapter 14, AR 635-200 for misconduct, due to frequent incidents of a discreditable nature with civil or military authorities. The applicant was advised that the basis for this recommendation was that he was sent to the USARB for the purpose of receiving correctional training so that he would return to duty as a well-trained soldier with an improved attitude and motivation. However, his actions since arriving precluded accomplishment of the objective as evidenced by his behavior and attitude. He demonstrated little desire to return to duty. He received counseling from social workers, the leadership and the cadre at the USARB, and his present record and his failure to react constructively to the rehabilitation program were indicative that he should not be retained in the service. He was also advised of the rights available to him.

On 15 October 1981, the applicant acknowledged notification, consulted with legal counsel, and waived a personal appearance before a board of officers. He did not submit a statement in his own behalf.

On 26 October 1981, the final approval authority waived further rehabilitation and directed that the applicant be separated for misconduct with a UOTHC discharge.

On 29 October 1981, the applicant was separated with a UOTHC discharge under the provisions of chapter 14, AR 635-200, by reason of misconduct. He had completed 2 years, 8 months and 18 days of creditable military service and he had 32 days of lost time due to being AWOL and in confinement.

On 6 October 1983, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

On 1 March 1989, the DVA determined that the applicant was not entitled to DVA benefits based on the UOTHC discharge that he received on 29 October 1989. He was not entitled to compensation, pension, or any other DVA benefit other than medical care for residuals of cold injury of the right foot (frostbite).

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, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a UOTHC discharge is normally considered appropriate, but a GD under honorable conditions or an honorable discharge may be granted.

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 have jeopardized his rights.

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

4. On 25 February 1981, the applicant appealed his NJP action and he annotated and authenticated his NJP proceedings to indicate that he did not demand trial by court-martial. He was not court-martialed as a result of this appeal. Both the proceedings and the punishment were determined to be legally sufficient.

5. In February 1981, the applicant contended that his physical profile had been violated. It was determined at that time that he had been required only to work within the limits of his profile. The applicant's profile is not available, however there is no evidence available to indicate that his physical profile was violated.

6. In July of 1981, the applicant was convicted by a summary court-martial and sentenced to confinement at the Retraining Brigade after he continuously failed to go to his appointed place of duty at the prescribed time.

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7. The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an appeal requesting a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. There is no evidence of inequity or impropriety in the applicant's case.

8. 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

_AAO___ ___RWA ___KYF__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064332
SUFFIX
RECON
DATE BOARDED	20020404
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19811029
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.600
2.
3.
4.
5.
6.