MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 June 2002
         DOCKET NUMBER: AR2002071033

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Allen L. Raub		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, that he had no direction in his life before enlisting and did some foolish things. He goes on to state that he was just a kid of 17 when he enlisted and did not know what respect, integrity, loyalty or taking orders from superiors entailed. However, life has taught him these things. He continues by stating that he is now disabled and would like to be able to take care of his family and asks that the Board elect not to penalize him forever.

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

He was born on 26 June 1962 and enlisted in Oklahoma City, Oklahoma on 12 January 1982, for a period of 3 years, training as a supply specialist and assignment to Europe. He completed his training and was transferred to Germany on 20 May 1982.

On 20 August 1982, nonjudicial punishment was imposed against him for wearing an earring while in uniform. His punishment consisted of a forfeiture of pay and extra duty.

He was advanced to the pay grade of E-3 on 1 February 1983 and on 24 March 1983, nonjudicial punishment was imposed against him for disobeying a lawful order from a superior noncommissioned officer. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 90 days), a forfeiture of pay and extra duty. The suspended reduction was vacated on 5 May 1983, due to the applicant’s failure to appear at a work call formation.

On 19 May 1983, nonjudicial punishment was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and extra duty.

He was charged with breaking and entering (burglary) and larceny. He entered into a plea agreement in which he agreed to plea guilty to the charge of larceny. He was convicted by a special court-martial of larceny on 28 July 1983 and was sentenced to confinement at hard labor for 4 months, a forfeiture of pay and reduction to the pay grade of E-1. However, pursuant to his plea agreement, the convening authority approved only so much of the sentence of 45 days confinement at hard labor and a forfeiture of pay. He was transferred to the United States Army Correctional Activity (USACA), Fort Riley, Kansas, to serve his confinement.

On 22 September 1983, while still at Fort Riley, nonjudicial punishment was imposed against him for disobeying two lawful orders from the battalion commander. His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 3 October 1983, the unit commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct. However, it appears that the recommendation was returned without action and the applicant received a rehabilitative transfer to another unit.

The applicant’s pattern of misconduct continued and the applicant’s commander notified him on 28 November 1983, that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct. He cited as the basis for his recommendation, the applicant’s disciplinary record and his repeated failure to respond to counseling and rehabilitation efforts.

After consulting with counsel, the applicant waived his right to appear before a board of officers and to be represented by counsel.

On 5 December 1983, the appropriate authority approved the recommendation for discharge and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 7 December 1983, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct. He had served 1 year, 9 months and 20 days of total active service and had 36 days of lost time due to imprisonment.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 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. Chapter 14 established the policy and prescribes procedures for separating members for various types of misconduct that included frequent involvement in incidents of a discreditable nature with civil or military authorities. It provided that action would be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions 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. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3. The applicant was sent to the USACA, a unit that was designed to rehabilitate soldiers with a sentence of confinement, with the hopes of returning soldiers back to duty as productive members and afford them an opportunity to serve out the remainder of their service honorably. It appears that the applicant chose not to take advantage of the opportunity afforded to him at the time.

4. 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.

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

__mm___ ___alr___ __kak___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071033
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/06/18
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1983/12/07
DISCHARGE AUTHORITY	AR635-200/CH14
DISCHARGE REASON	MISCONDUCT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 626	144.6000/A60.00
2.
3.
4.
5.
6.