MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2001066204

         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. Fred N. Eichorn		Chairperson
Mr. Lester Echols		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)

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APPLICANT REQUESTS: In effect, entitlement to back pay and allowances, military retirement and benefits, and promotion to E-6. He also requests that all records relating to his “wrongful separation” be expunged from his military records and that his military records be corrected to show all awards and decorations to which he is entitled.

APPLICANT STATES: In effect, that he was wrongfully discharged with a general discharge on 30 November 1971, which was a violation of due process. He contends that an honorable discharge was issued in 1980. He goes on to state that he did not receive a hearing to determine back pay and additional allowances for quarters, rations, clothing and accrued leave for his completed term of enlistment. He contends that he should be entitled to military retirement and benefits; that he should be promoted to E-6; that all documents relevant to his “wrongful separation” from the service should be expunged from his military records; and that his military records should be corrected to show all decorations to which he is entitled. In support of his application, he submits his resume; a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 29 October 2001; a Power of Attorney, dated
16 October 2001; an affidavit, dated 31 October 2001; a statement of questions; a brief in support of his application, dated 31 October 2001; and a Standard Form 180 (Request Pertaining to Military Records), dated 15 October 2001.

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

The applicant enlisted on 27 August 1970 for a period of 3 years. He successfully completed basic combat training although he received two nonjudicial punishments for being absent without leave (AWOL) for 4 hours and assault. He completed advanced individual training without incident.

Between 23 April 1971 and 18 August 1971, nonjudicial punishment was imposed against the applicant on four occasions for being AWOL, disobeying a lawful order, failure to go to his appointed place of duty, and being disrespectful toward a superior commissioned officer.

On 27 October 1971, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212, for unsuitability.

On 27 October 1971, 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 own behalf.

The available records do not contain a mental status evaluation or a separation physical examination. However, the Army Discharge Review Board (ADRB) proceedings in the applicant’s case indicate that he underwent a mental status evaluation and competent medical authority found the applicant “normal”, as did the separation physical examination.

On 27 October 1971, the applicant’s unit commander submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-212, for unsuitability. He cited as the basis for his recommendation the applicant’s continual inability to adapt to the normal stresses and strains of Army life, his disrespect for superiors, his rebellious attitude and chronic immaturity. He stated that despite transfers, disciplinary actions and countless counseling sessions, the applicant continued to bring disciplinary actions upon himself.

On 23 November 1971, the separation authority approved the recommendation for separation.

Accordingly, the applicant was discharged under honorable conditions (a general discharge) on 30 November 1971 under the provisions of Army Regulation
635-212, for unsuitability by reason of character and behavior disorders. He had served 1 year, 3 months and 3 days of total active service with 1 day lost due to AWOL. He was issued a RE code of “RE-3B.”

On 19 June 1981, the ADRB upgraded the applicant’s discharge to honorable and changed his narrative reason for separation to “DETERMINATION OF SERVICE SECRETARY.”

There is no evidence in the available records which shows the applicant completed any regular Army service or Reserve service following his separation in 1971.

Review of the applicant’s records and Army Regulation 600-8-22 (Military Awards) does not reveal entitlement to any additional awards.

Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by: the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeal boards, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center or Chief of the Appeals Branch of the National Guard Personnel Center.

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. Evidence of record shows the applicant was separated with a general discharge on 30 November 1971 under the provisions of Army Regulation
635-212, for unsuitability by reason of character and behavior disorders.

2. The applicant’s mental status evaluation contained in his service personnel records at the time of his ADRB review, which was signed by competent medical authority, found the applicant “normal.”

3. Based on the foregoing, the ADRB determined the applicant’s discharge was not proper or equitable and upgraded his discharge to honorable and changed the narrative reason for separation to “DETERMINATION OF SERVICE SECRETARY.”

4. Based on the ADRB decision, the applicant was eligible to enlist in the Army, the Army Reserve or the Army National Guard with an approved waiver. However, there is no evidence that he sought enlistment in 1981 and at this late date he is not eligible for military service based on his age. In the absence of evidence that he enlisted and served qualifying periods of service for regular or non-regular retirement, there is no basis to grant any back pay and allowances, retirement pay and or benefits, or a promotion to E-6.

5. The Board considered the applicant’s request that all records relating to his “wrongful separation” be expunged from his military records. However, evidence of record shows the applicant was administratively separated for unsuitability. Documents pertaining to the applicant’s administrative discharge were properly filed in his Official Military Personnel File at the time of his separation and are still official records of the discharge process leading to his separation from the Army. In view of the foregoing, there is no basis for removal of these documents from his Official Military Personnel File.

6. The Board considered the applicant’s request that his military records be corrected to show all decorations to which he is entitled. However, in accordance with the governing awards regulation, the applicant is not entitled to any additional awards or decorations. Therefore, there is no basis for granting the applicant’s request.

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

FNE____ LE______ TL______ DENY APPLICATION

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

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INDEX

CASE ID	AR2001066204
SUFFIX
RECON
DATE BOARDED	20020328
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	136.0000
2.	128.0000
3.	131.0000
4.	126.0400
5.
6.