MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 May 2002
         DOCKET NUMBER: AR2002069956

         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:

Ms. Joann Langston		Chairperson
Mr. John N. Slone		Member
Mr. Terry L. Placek		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 be upgraded.

APPLICANT STATES: That the Article 15s he received were unjust and that the charges brought against him were not sufficient to warrant a court-martial. He also states that, the war was ending in 1973, and he and many others were "subject" to an evacuation plan to remove unwanted soldiers. The applicant did not submit any documents in support of his application.

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

The applicant enlisted in the Regular Army on 1 September 1972 for a period of three years. He successfully completed basic and advanced individual training and was assigned to Fort Gordon, Georgia, as a radio relay and carrier attendant.

On 13 September 1973, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of failing to go to his appointed place of duty. He acknowledged receipt of the Article 15, did not demand trial by court-martial, and elected not to submit matters in his own defense. His punishment consisted of 10 days extra duty and 10 days restriction to the company area. The applicant accepted the Article 15 and elected not to appeal the punishment.

The applicant was punished under Article 15, UCMJ, again on 10 October 1973 for two specifications of failing to go to his appointed place of duty. He acknowledged receipt of the Article 15, did not demand trial by court-martial, and submitted matters in his own defense. His punishment consisted of reduction to private E-1, forfeiture of $163.00 pay for 2 months (suspended for 60 days), 45 days extra duty, 45 days restriction to the company area with the exceptions of Mess Hall Number 10, Local Post Exchange, Dispensary Number 1, and Chapel of Choice (Fort Gordon).

On 26 October 1973, the applicant was punished under Article 15, UCMJ, for violating a general regulation by operating a passenger vehicle too fast for conditions. He acknowledged receipt of the Article 15, did not demand trial by court-martial, and elected not to submit matters in his own defense. His punishment consisted of forfeiture of $50.00. The applicant accepted the Article 15 and elected not to appeal the punishment.

On 20 November 1973, the applicant was convicted by a special court-martial of behaving with disrespect toward his superior commissioned officer and wrongfully appearing in a uniform improperly worn. He was sentenced to confinement at hard labor for 2 months, forfeiture of $100.00 pay for 2 months and reduction to private E-1.

On 26 November 1973, the applicant submitted an appeal to the punishment of the Article 15 proceedings, dated 10 October 1973. The Judge Advocate at Fort Gordon, Georgia, stated that the Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not disproportionate to the offense committed and recommended that the appeal be denied. The superior authority denied the applicant's appeal to the punishment.

On 27 November 1973, 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 failing barracks inspection, missing medical appointments, failing work call inspection, being out of uniform, failing "B" and "C" Modules, fighting in the "chow" line, having a poor attitude, and not wanting to return to duty.

The applicant was notified of pending separation action under the provisions of Army Regulation 635-200, chapter 13, for unfitness 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 4 January 1974, the separation authority waived rehabilitation requirements, approved the separation action, and directed issuance of an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged on 14 January 1974 under the provisions of Army Regulation 635-200, chapter 13 for unfitness based on frequent incidents of a discreditable nature with civil or military authorities. He had 1 year, 2 months and 26 days of creditable service and 48 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, set forth the basic authority for the separation of enlisted personnel. Paragraph 13-5a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was 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 Gordon, Georgia, the applicant received three nonjudicial punishments for failing to go to his appointed place of duty and violating a general regulation. On 20 November 1973, he was convicted by a special court-martial for disrespect toward an officer and appearing in a uniform improperly worn.

2. On 27 November 1973, 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's conduct and efficiency were unsatisfactory.

3. Based on his performance and conduct at the USARB, his unit commander determined that he should be separated for unfitness 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 contention that his Article 15s were unjust. The applicant's contention that the charges brought against him were not sufficient to warrant a court-martial was also 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. 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

JL______ JNS_____ TLP_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069956
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020509
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19740114
DISCHARGE AUTHORITY	AR635-200,paragraph 13-5a(1)
DISCHARGE REASON	Unfitness – 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.