MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 May 2002
         DOCKET NUMBER: AR2001066027

         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:

Ms. Jennifer L. Prater		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Thomas Lanyi		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)

---

APPLICANT REQUESTS: That his under other than honorable conditions (UOTHC) discharge be upgraded to a fully honorable discharge.

APPLICANT STATES: In effect, that he was young and immature; that he enlisted for an assignment at Fort Lewis, Washington, but he was sent to Fort Polk, Louisiana, instead; and that he was coerced into accepting a discharge under the provisions of chapter 14, Army Regulation 635-200. He also states that he is disabled and that he suffers from a psychiatric problem.

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

The applicant enlisted in the Delayed Entry Program (DEP) on 3 March 1977 with a scheduled Regular Army (RA) enlistment date of 24 June 1977. He was to enlist for 3 years in military occupational specialty (MOS) 13B, Cannon Crewmember, and an assignment in Korea. However, for reasons unknown, he was not honorably discharged from the DEP until 16 August 1977.

On 17 August 1977, at age 19, the applicant enlisted in the RA for a period of 3 years, training in MOS 11C, Indirect Fire Infantryman, and station of choice - 9th Infantry Division, Fort Lewis, Washington. The applicant completed basic combat training (BCT) at Fort Leonard Wood, Missouri. On 31 October 1977, he was assigned to Fort Benning, Georgia, for advanced individual training (AIT).

On 7 November 1977, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military (UCMJ), was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed. His punishment is unknown. The record of proceedings is no longer contained in his Official Military Personnel File.

On 16 November 1977, NJP was once again imposed against the applicant for failing to go to his place of duty on 13 November 1977. His punishment included forfeiture of $92.00 pay per month for 1 month.

The applicant completed AIT and was awarded MOS 11C. On 17 January 1978, he authenticated a statement acknowledging that he voluntarily waived his enlistment commitment and agreed that he understood he would be assigned according to the needs of the Army. On the same date, he was assigned to Fort Polk, Louisiana.

On 17 February 1978 and 30 October 1978, NJP was imposed against the applicant for disobeying a lawful order on 8 February 1978 and 9 October 1978. His punishments included forfeiture of pay and extra duty.

---

On 15 May 1979, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 15 May 1979. His punishment included reduction from pay grade E-3 to pay grade E-2 (suspended), forfeiture of $75.00 pay per month for 1 month, and confinement at the Correctional Custody Facility (CCF) for 7 days (deferred until 16 May 1979). On 1 October 1979, he was advanced to pay grade E-4.

On 20 November 1979, the applicant was enrolled in the Primary Noncommissioned Officer Course and on 21 December 1979, he was released from the course due to failure to repair and a lack of motivation.

On 17 December 1979 and on 24 January 1980, NJP was imposed against the applicant for being absent without leave (AWOL) from his unit on 8 December 1979 and for being AWOL from 5-7 January 1980. His punishments included forfeiture of pay, extra duty, restriction and 30 days' confinement at the CCF. He also received a reduction in rank each time, therefore, he was reduced to private, pay grade E-1.

On 4 March 1980, NJP was imposed against the applicant for being drunk on duty on 27 February 1980 and for disobeying a lawful order on 4 March 1980. His punishment included forfeiture of $104.00 pay per month for 1 month, restriction, and extra duty.

On 7 March 1980, the applicant's commander 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 the NJP's that he had received; that he had been provided professional counseling, but failed to perform in a satisfactory manner; and that he refused to accept rehabilitation. He was also advised of the rights available to him.

On 14 March 1980, a medical examination determined that the applicant was qualified for separation.

On 17 March 1980, the applicant acknowledged notification and he waived legal representation. He also waived a personal appearance before a board of officers. He did not submit a statement in his own behalf.

Both the battalion and brigade commanders recommended approval. On 6 June 1980, the approval authority approved the recommendation and directed that the applicant be separated for misconduct with a UOTHC discharge.

On 27 June 1980, the applicant was separated with a UOTHC discharge under the provisions of chapter 14, AR 635-200, by reason of misconduct-frequent incidents of a discreditable nature with civil or military authorities. He had completed 2 years, 10 months and 11 days of creditable military service.

On 28 April 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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, convictions by civil authorities, desertion or absence 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. 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. Prior to being separated, the applicant was provided an opportunity to acquire legal representation and he waived that right. The available records do not contain any evidence that indicates he was ever coerced and he has provided no evidence to the contrary.

3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

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

5. The Board has taken into consideration the applicant’s contention that he was young, however, the applicant met entrance qualification standards to include age. Further, the Board found no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.

6. The evidence available indicates that the applicant was assigned to Fort Polk after he voluntarily waived his enlistment commitment and agreed that he would be assigned according to the needs of the Army.

7. A medical examination determined that the applicant was qualified for separation and there is no evidence available that indicates he had a psychiatric problem while he was serving in the Army.

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

__jlp_____ __bje____ ____tl __ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001066027
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020521
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19800627
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON	A60.00
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.	144.6000
2.
3.
4.
5.
6.