MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 March 2002
         DOCKET NUMBER: AR2001065050

         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. George Paxson		Chairperson
Ms. Deborah Jacobs		Member
Mr. Ronald E. Blakely		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: That he completed ten months out of a three year contract, that he had three letters of commendation after air assault school and that he was then discharged because he wanted to go to the Special Forces. He contends that his discharge should be upgraded for the following reasons:
(1) clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge; (2) under current standards, he would not receive the type of discharge he did; (3) his average conduct and efficiency ratings/behavior and proficiency marks were good; (4) he received letters of recommendation; (5) he tried to serve and wanted to, but just couldn’t or wasn’t able to; (6) his command abused its authority when it decided to discharge him and decided to give him a bad discharge; and (7) he had applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it. In support of his application, he submits a letter, dated 4 April 2001, to a Member of Congress wherein he contends that he injured his knees during his active duty service and was diagnosed with mild chondromalacia by a military physician prior to his release; and copies of medical records which were prepared after his release from active duty.

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

The applicant enlisted on 7 November 1975 for a period of 3 years. He successfully completed basic and advanced individual training and was transferred to Fort Campbell, Kentucky, for duty as a rifleman.

Records show that between 20 March 1976 and 10 August 1976, the applicant was counseled on 21 occasions for various infractions which included insubordination, poor duty performance, failure to obey a noncommissioned officer and attitude. Records also show that the applicant’s conduct/efficiency ratings were unsatisfactory/unsatisfactory from 19 March 1976 to 12 August 1976.

The applicant’s DA Form 2 (Personnel Qualification Record - Part 1), prepared on 17 July 1976, shows his physical profile as 111111. He underwent a separation medical examination on 4 August 1976 and was found qualified for separation under the provisions of Army Regulation 635-200, chapter 13. The Board notes that an orthopedic consultation on the applicant’s lower extremities was recommended. However, this consultation is not contained in the available records.

On 11 August 1976, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability. The unit commander cited that the applicant had shown a consistent lack of appropriate interest in becoming a productive soldier, that he had displayed a defective attitude, that he had shown little effort to expend constructive effort to improve himself, that all efforts by his chain of command to motivate him had negative results, that he had been extensively counseled and his apathetic attitude continued and that he had displayed no potential for rehabilitation or further military service.

On 12 August 1976, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived representation by counsel and elected not to submit a statement on his behalf. The applicant also acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge were issued.

On 12 August 1976, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unsuitability.

On 23 August 1976, the intermediate commander recommended separation for unsuitability.

On 24 August 1976, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to inaptitude and directed that the applicant be furnished a general discharge.

Accordingly, the applicant was discharged with a general discharge on 30 August 1976 under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to inaptitude. He had served 9 months and 24 days of total active service.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. Chapter 13 provided for discharge due to unfitness and unsuitability. Specific categories for unsuitability included inaptitude, character and behavior disorders, apathy, alcoholism and homosexuality. The regulation also states that when separation for unsuitability was warranted an honorable or general discharge was issued as warranted by his/her military record.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

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 contention that he completed air assault school. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

2. The applicant’s contention that he was discharged because he wanted to go to the Special Forces is not supported by the evidence of record. Evidence of record shows the applicant was discharged for unsuitability due to inaptitude.

3. The Board considered the applicant’s contention that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. However, evidence of record shows the applicant received a general discharge, not a bad discharge.

4. His contention that under current standards, he would not receive the type of discharge he did, is not supported by the evidence of record. In accordance with the current governing regulation, the service of soldiers separated because of unsatisfactory performance (Army Regulation 635-200, chapter 13) would be characterized as honorable or under honorable conditions (a general discharge) as warranted by their military record.

5. The Board considered the applicant’s contention that his average conduct and efficiency ratings/behavior and proficiency marks were good. However, evidence of record shows the applicant’s conduct/efficiency ratings were unsatisfactory/unsatisfactory from 19 March 1976 to 12 August 1976.

6. The Board also considered the applicant’s contentions that he received letters of recommendation; that he tried to serve and wanted to, but just couldn’t or wasn’t able to; that his command abused its authority when it decided to discharge him and decided to give him a bad discharge; and that he applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it. However, there is no evidence of record, and the applicant has provided no evidence, to support these contentions.

7. The Board noted the applicant’s contention that he injured his knees during his active duty service and was diagnosed with mild chondromalacia by a military physician prior to his release. However, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation. Accordingly, the applicant was separated from active duty for unsuitability, not as the result of a medical condition.

8. 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.

9. 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.

10. 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.

11. 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

GP_____ DJ______ REB_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065050
SUFFIX
RECON
DATE BOARDED	20020326
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19760830
DISCHARGE AUTHORITY	AR 635-200 Chapter 13
DISCHARGE REASON	Unsuitability
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.