MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 April 2002
         DOCKET NUMBER: AR2001065559

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Donald P. Hupman		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 general discharge.

APPLICANT STATES: In effect, that he was young and immature when he joined the Army and was not prepared to be in a military environment. In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); Chapter 14 discharge proceedings; DA Form 2-1 (Personnel Qualification Record); Report of Results of Trial; two Article 15s; numerous copies of Training Progress Notes, Trainee Observation Reports, Progress Reports, and Behavioral Rating Scales.

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

The applicant enlisted in the Regular Army on 15 June 1979 for a period of 3 years and completed basic and advanced individual training. In October 1979, he was assigned to Fort Hood, Texas, as a track vehicle mechanic.

On 9 January 1980, the applicant received nonjudicial punishment for being absent from his unit for one duty day. His punishment consisted of forfeiture of $60.00 pay per month for 1 month and 14 days extra duty.

On 18 June 1981, the applicant was convicted by a special court-martial of being disrespectful and disobeying an officer. He was sentenced to confinement at hard labor for 45 days, forfeiture of $100.00 pay per month for 2 months and reduction to private.

On 1 July 1981, the applicant was assigned to the U.S. Army Retraining Brigade (USARB) in Fort Riley, Kansas. During this assignment, he received several adverse counseling reports for being late for formation, for failing barracks inspection, breach of peace, and disobeying a lawful order.

The applicant received nonjudicial punishment again on 2 September 1981, for leaving his appointed place of duty. His punishment consisted of forfeiture of $75.00 pay per month for 1 month (suspended for 30 days), 10 days restriction to billets, dining facility, chapel, and training, and 10 days extra duty for 3 hours per day, as directed by the charge of quarters. On 8 September 1981, the suspension of punishment of forfeiture of $75.00 was vacated.

On 14 September 1981, the applicant was notified of pending separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on frequent incidents of a discreditable nature with civil or military authorities. He acknowledged the notification, consulted with legal counsel, waived his right to a hearing before an administrative separation board, and did not submit statements in his own behalf.

On 2 October 1981, the separation authority waived rehabilitation requirements, approved the separation action, and directed issuance of an UOTHC Discharge Certificate.

Accordingly, the applicant was discharged on 8 October 1981 under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on frequent incidents of a discreditable nature with civil or military authorities. He had 2 years, 2 months and 18 days of creditable service and 36 days of lost time due to confinement.

There is no indication that 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, 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 serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC is normally considered appropriate.

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. While assigned to Fort Hood, Texas, the applicant received nonjudicial punishment for being absent for one duty day. On 18 June 1981, he was convicted by a special court-martial of disrespecting and disobeying an officer .

2. On 1 July 1981, the applicant was transferred to the USARB at Fort Riley, Kansas for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained soldier with improved attitude and motivation. However, during his tenure at the USARB, the applicant committed numerous acts of indiscipline and was administered nonjudicial punishment and subsequently the suspended portions of his punishment were vacated for additional offenses.

3. Based on his performance and conduct at the USARB, his unit commander determined that he should be separated for misconduct based on frequent incidents of a discreditable nature with military authorities.

4. 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.
5. The Board considered the applicant’s request to upgrade his discharge, his contentions and available evidence. The applicant’s contention that he was young and immature and could not handle a military environment was noted by the Board.

6. In reviewing the applicant’s record, the Board noted his record of indiscipline, to include nonjudicial punishments and a special court-martial. The Board also noted that he received a substantial opportunity to rehabilitate himself at the USARB but continued to commit acts of indiscipline resulting in further nonjudicial punishment. As a result, the Board concluded that the applicant’s service warranted the type of discharge directed and the reasons for his separation were appropriate considering all the facts of the case.

7. 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.

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

RVO____ RJW_____ DPH ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065559
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020409
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19811008
DISCHARGE AUTHORITY	AR 635-200,chapter 14-33b(1)
DISCHARGE REASON	Misconduct – Frequent incidents of a discreditable nature with civil or military authorities
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.