MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 August 2002
         DOCKET NUMBER: AR2002071844

         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:

Mr. John N. Slone		Chairperson
Ms. Irene N. Wheelwright		Member
Mr. Jose A. Martinez		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 be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that he excelled in his performance during training, was selected to be a hometown recruiter, completed jump school and was assigned to the 82^nd Airborne Division as a cavalry scout. He goes on to state that he worked hard and enjoyed his work. He also states that his work ethic in the military was subject to opinion and many of his fellow soldiers would have gone to war with him. He continues by stating that he understands his infractions and believes that they have been paid for by the repercussions at the time. He further states that he has been successful in the civilian community in the security industry and desires an upgrade of his discharge to further improve his opportunities.

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

He enlisted in Oakland, California, on 30 December 1977, for a period of 3 years and training as an armor reconnaissance specialist. He was transferred to Fort Knox, Kentucky, to undergo his basic combat and advanced individual training.

On 10 February 1978, nonjudicial punishment (NJP) was imposed against him for the wrongful possession of marijuana. His punishment consisted of a forfeiture of pay, extra duty and restriction.

He completed his training and was transferred to Fort Benning, Georgia, where he completed basic airborne training. Upon completion of airborne training he was transferred to Fort Bragg, North Carolina, for duty as a cavalry scout. He was advanced to the pay grade of E-3 on 1 December 1978.

On 16 March 1979, NJP was imposed against him for disobeying a lawful order from a noncommissioned officer. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and correctional custody for 7 days (suspended for 90 days).

He was advanced to the pay grade of E-3 on 1 November 1979 and on 11 December 1979, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 90 days).

On 1 May 1980, the applicant’s commander initiated a recommendation to bar him from reenlistment. He cited as the basis for his recommendation, the applicant’s disciplinary record, writing bad checks, and his failure to respond to repeated counseling sessions regarding the prohibition of females in the barracks, violation of bed rest, substandard appearance and cleanliness and being late for formations. The applicant indicated that he wished to submit a statement in his own behalf; however, there is no indication that he ever made such a statement. The appropriate authority approved the bar to reenlistment on 14 May 1980.

On 27 May 1980, the applicant’s parachutist status and hazardous duty pay were terminated. His parachutist badge was withdrawn as well as his parachutist special qualification identifier. He was deemed a deliberate terminee.

There are documents contained in his records which indicate that the applicant was being considered for separation from the service in June 1980, under the Expeditious Discharge Program. However, it appears that the action was never processed to completion.

On 2 September 1980, NJP was imposed against him for disobeying a lawful order from a commissioned officer. His punishment consisted of a forfeiture of pay.

On 6 November 1980, the applicant’s commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13 for unsuitability due to apathy and his defective attitude or inability to expend effort constructively. He indicated that the applicant’s performance since being assigned to the unit had been unsatisfactory and below standard and that his appearance, performance and motivation were all severely lacking.

After being advised of his rights, and consulting with counsel, the applicant waived his rights and elected not to submit matters in his own behalf.

The appropriate authority approved the recommendation for discharge and directed that he be furnished a general discharge.

Accordingly, he was discharged under honorable conditions on 3 December 1980, under the provisions of Army Regulation 635-200, paragraph 13-4c(1), for unsuitability – apathy, defective attitude or inability to expend effort constructively. He had served 2 years, 11 months and 4 days of total active service.

There is no indication in the available records to show that he ever 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, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. An individual could be found unfit for various types of misconduct that included frequent incidents of a discreditable nature with military authorities, apathy, defective attitude and personality disorders. Although an honorable or general discharge could be issued, 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. The applicant’s administrative discharge was accomplished in accordance with applicable regulations in effect at the time with no indication of any procedural errors that would tend to jeopardize his rights. Accordingly, the type of discharge and the reasons therefore were appropriate given the circumstances in this case.

2. The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service.

3. 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.

4. 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

__inw ___ ___js ___ ___jm ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071844
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/15
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1980/12/03
DISCHARGE AUTHORITY	AR635-200/CH13
DISCHARGE REASON	UNFIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/A53.00
2.
3.
4.
5.
6.