MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002069503

         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:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman, Jr.		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 undesirable discharge (UD) be upgraded to a general under honorable conditions discharge (GD).

APPLICANT STATES: In a letter to the Board, that he had an unstable childhood involving frequent moves, divorce, living with relatives, and encounters with the criminal justice system. He joined the Army under the Buddy Plan, but he and his buddy were never together. He was sent to Germany, liked his duty, and reenlisted for his present duty assignment. When he returned from his reenlistment leave, he was reassigned; in effect, his contract was not honored. Following his separation, he was aimless for the first few years, but at 25 years of age, he settled down. He has worked the same job for 22 years, he has been married for 21 years, he owns a small business, and he is active in various public service endeavors. In support, he provides: the personal letter of 25 July 2001, a copy of his DD Form214 (Armed Forces of the United States Report of Transfer or Discharge), and a copy of his DD Form 4 (Enlistment Contract), dated 29 September 1972.

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

He enlisted in the Regular Army on 15 November 1971 with a declaration of parental consent signed by his mother. Following all military training, he was awarded military occupational specialty (MOS) 36K (Field Wireman) and assigned to Headquarters and Headquarters Battery (HHB), VII Corps Artillery, in Germany. He served honorably until he was separated on 28 September 1972 for the purpose of immediate reenlistment. His DD Form 4 indicates in Item 56 (Remarks) that he reenlisted for an assignment with HHB, 3rd Battalion, 17th Field Artillery.

The applicant's DA Form 20 (Enlisted Qualification Record) shows that he departed his unit in an absent without leave (AWOL) status from 1-20 February 1973.

On 9 April 1973, the applicant was convicted by a summary court-martial of the above period of AWOL and of violating a lawful General Regulation by entering a foreign country (France) without proper authority on 1 February 1973. He was sentenced to reduction from pay grade E-3 to pay grade E-2, forfeiture of two-thirds pay per month for 1 month, and 30 days of hard labor without confinement.

On 4 May 1973, nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed in order to perform extra duty, and for disobeying a lawful order to get a haircut on 30 April 1973. His punishment

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included forfeiture of $70.00 pay per month for 1 month, reduction from pay grade E-2 to pay grade E-1 (suspended until 3 June 1973 unless sooner vacated), and 14 days of extra duty and restriction. On 7 May 1973, the suspended portion of his punishment was vacated; the reason for this action is not a matter of record.

On 8 June 1973, the applicant's summary court-martial sentence that was adjudged on 9 April 1973 was modified and that portion of the sentence in excess of the reduction to pay grade E-2 was set aside.

On 27 August 1973, the applicant was convicted by a summary court-martial of being AWOL from 10-27 July 1973. He was sentenced to forfeiture of $100.00 pay per month for 3 months and confinement at hard labor for 3 months. The applicant was transferred to the United States Army Retraining Brigade, Fort Riley, Kansas, where he served in confinement from 27 August-29 October 1973.

The applicant’s record is void of the facts and circumstances surrounding the discharge process. However, the record does contain a properly constituted
DD Form 214 (Report of Separation from Active Duty) that he signed at the time of separation.

The applicant’s DD Form 214 indicates that he was separated on 30 October 1973, under the provisions of paragraph 13-5a(1), Army Regulation 635-200, for unfitness, by being involved in frequent incidents of a discreditable nature with civil or military authorities. He was separated with a UD. He had completed a total of 1 year, 8 months, and 4 days of creditable service, including 10 months and 13 days of prior active military service and 9 months and 21 days of service on the enlistment under review. His DD Form 214 also shows that he had 101 days of lost time due to being AWOL and in confinement.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under 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 13-5a(1) contained the policy and outlined the procedures for separating individuals for unfitness and provided, in pertinent part, that commanders would separate a member under this chapter when the member was involved in frequent incidents of a discreditable nature with civil or military authorities. A UD was generally considered appropriate.

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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 applicant’s record is void of facts and circumstances concerning events that led to his discharge from the Army. The Board noted that the applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.

3. The Board determined that the applicant reenlisted for an assignment to HHB, 3rd Battalion, 17th Field Artillery. He was, in fact, assigned to this unit upon his return from reenlistment leave; there was no breach of contract by the Army.

4. There is no evidence that indicates the applicant was any less mature than other soldiers of the same age who successfully completed their military service obligation.

5. The Board notes the applicant’s letter with his application outlining his successful accomplishments since separation from active duty. The applicant is commended for his efforts. However, these accomplishments do not provide the Board a basis upon which to grant relief.

6. 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

__lls___ __pm____ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069503
SUFFIX
RECON
DATE BOARDED	20020806
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19731030
DISCHARGE AUTHORITY	AR635-200, Ch 13
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.