MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 July 2002
         DOCKET NUMBER: AR2002066903

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Raymond J. Wagner		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 (GD) be upgraded to honorable.

APPLICANT STATES: That all black soldiers under the leadership of a certain racially motivated and prejudiced captain were treated unfairly and in a very prejudicial manner. He states that he had the unfortunate opportunity to serve twice with this captain. He states that he was continuously harassed and punished and that because of this harassment and punishment his life was ruined.

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

He enlisted in the Regular Army on 6 November 1979, for a period of 4 years. He enlisted for the United States Army Combat Arms Unit/Area of Choice Enlistment Option –Korea, and a dual Enlistment Option with training in Military Occupational Specialty (MOS) 11B, Infantryman, and a $3,000.00 Cash Bonus Enlistment Option. Following completion of all military training, the applicant was awarded MOS 11H, Heavy Antiarmor Weapons Crewman, in lieu of MOS 11B, without any consequence to his bonus and was assigned to Korea as his first permanent duty station.

The applicant's DA Form 2-1 (Personnel Qualification Record) reflects that he was absent without leave (AWOL) from 21-23 February and 24-26 June 1980. The evidence of record does not reflect that any action was taken to punish the applicant.

On 29 July 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for violating a lawful general regulation by purchasing in excess of his authorized quantity (a ration control violation). His punishment consisted of forfeiture of $100.00 pay per month for one month.

On 25 August 1980, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty and violating a lawful general regulation by taking a pass privilege without having an authorized pass. His punishment consisted of 7 days' restriction and extra duty.

On 15 September 1980, the applicant accepted NJP for disobeying a lawful order given by a military police in the performance of his duties and disobeying a general regulation. His punishment consisted of reduction to private/E-2 (suspended for 90 days) forfeiture of $75.00 pay per month for two months, and 30 days' restriction and extra duty.

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On 2 November 1980, the applicant accepted NJP for disobeying a general regulation. His punishment consisted of forfeiture of $100.00 pay (suspended).

On 22 December 1980, the applicant was barred from reenlisting.

On 13 January 1981, the applicant was notified that he was being recommended for separation under the provisions of chapter 13, Army Regulation 635-200 for a lack of interest, a defective attitude toward his superiors, and frequent incidents of a discreditable nature with military authorities as evidenced by numerous counseling statements and nonjudicial punishments.

On an unknown date, the applicant filed a complaint with the Equal Opportunity (EO) Office. On 14 January 1981, the applicant's unit responded to the EO complaint initiated on the applicant's behalf.

On 29 January 1981, the applicant accepted NJP for being AWOL from 15 December to 17 December 1980. His punishment consisted of reduction to private/E-1, forfeiture of $200.00 pay per month for two months, and 20 days' restriction and extra duty.

On 2 March 1981, a Board of Officers recommended that the applicant be discharged from the service with a GD because of apathy.

On 6 March 1981, the appropriate authority approved the recommendation for discharge and directed issuance of a GD. Accordingly, on 2 April 1981, the applicant was discharged from the Army after completing 1 year, 4 months, and 2 days of creditable military service and accruing 9 days of lost time.

There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 13 established the policy and prescribed the procedures for separating individuals for unsuitability. Paragraph 13-4c provided, for the separation of individuals determined to be unsuitable by reason of apathy, defective attitudes, or an inability to expend efforts constructively. Commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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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 Board noted that the applicant’s chain of command tried to assist him in performing and conducting himself to Army standards by providing counseling and by the imposition of nonjudicial punishment; however, the applicant failed to respond appropriately.

3. The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.

4. There is no evidence of record that shows the applicant was treated unfairly, or that the captain was prejudiced against him. The Board found no evidence of arbitrary or capricious actions by the applicant's chain of command. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout his service and the separation process.

5. 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

__kak___ __aao___ __rjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066903
SUFFIX
RECON
DATE BOARDED	20020702
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19810402
DISCHARGE AUTHORITY	AR 635-200, c13
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9405
2.
3.
4.
5.
6.