MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 October 2002
         DOCKET NUMBER: AR2002074306

         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. Antoinette Farley		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Walter T. Morrison		Member
Mr. Charles Gainor		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 and the character of service be changed to general, under honorable condition.

APPLICANT STATES: In effect, that at the time of his discharge, he was experiencing marital problems and not given counseling, but instead was unjustly discharged. He adds, that had he been given the opportunity to receive counseling, he would have better understood the ramifications of his actions or how to better handle his problems.

EVIDENCE OF RECORD: The applicant's military records are limited in that they do not contain several separation processing documents. However, his records show that he enlisted in the Regular Army for 3 years on 17 October 1977. He completed Basic Combat Training and Advanced Individual Training in military occupational specialty (MOS) 11B10 (Infantryman) on 2 February 1978. On 3 February 1978, he was reassigned to basic airborne training at Fort Benning, Georgia. On 8 March 1978, he was transferred to Fort Richardson, Alaska for duty in his MOS.

While assigned to Alaska, the applicant's record shows from 23 June 1978 and 16 May 1979, repeated instances of military misconduct for which he received five nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice. He received the first NJP on 23 June 1978, for wrongfully appropriating another soldier's property and for failing to go to his appointed place of duty on 3 June 1978. His punishments included forfeiture of $50.00 pay, and seven days of restriction, suspended for 90 days with the exception of 7 days of extra duty. He did not appeal.

He was married on 9 May 1979 and granted permission to live off-post on
14 May 1979.

He received his second NJP on 29 August 1979, for failing to go to his appointed place of duty on 1 and 16 August 1979. His punishments included forfeiture of $50.00 pay, extra duty for 14 days or until 11 September 1979 and reduction to the grade of E-2. He did not appeal.

He received his third NJP on 22 October 1979, for failing to go to his appointed place of duty on 28 September 1979, 2, 3, 4, 5 and 13 October 1979. His punishments included extra duty until 4 November 1979, reduction to the pay grade of E-1, forfeiture of $100.00, suspended for 60 days or until 19 December 1979. He did not appeal.

On 4 February 1980, the applicant’s unit commander initiated action to administratively eliminate him under the provisions of Army Regulation 635-200, Chapter 14, for misconduct. He received his fourth NJP on 14 February 1980, for failing to go to his appointed place of duty on 31 January 1979.
His punishments included forfeiture of $49.00, restriction for 14 days, reduction to the pay grade of E-1, and extra duty for 14 days, vacated, on 28 February 1980. He did not appeal.

He received his final NJP on 16 May 1980, for failing to go to his appointed place of duty on 28 April and 2 May 1980. His punishments included extra duty and restriction for 21 days, suspended for 90 days. He did not appeal.

The applicant’s record shows that a DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence) dated 20 May 1980 was prepared which indicates that he had previously being absent without leave (AWOL) and was pending disciplinary action. The form also shows that marital strife, may have been a contributing factor which caused his AWOL. However, his record does not contain a copy of any AWOL action for this period.

On 30 June 1980, he was reassigned to the U.S. Army Separation Transfer Point at Fort Richardson, Alaska.

On 3 July 1980, the applicant was separated with an under other than honorable conditions discharge, under the provisions of chapter 14, Army Regulation 635-200, for misconduct-frequent incidents of a discreditable nature with civil or military authorities. His DD Form 214 (Certificate of Release or Discharge from Active Duty) credits him with 2 years, 8 months and 17 days of creditable service and no lost time due to AWOL. The highest pay grade he attained was E-3.

There are no indications in documents associated with his nonjudicial punishments that he sought assistance from his commander, first sergeant, or other support organizations to resolve his alleged marital problems.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infarctions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and exertion or absences without leave. At the time of the separation action another category was misconduct-frequent incidents of discreditable nature with civil or military
authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a UOTHC discharge under other than honorable conditions is normally considered appropriate but a general or honorable condition discharge may be awarded.
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 the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. Based on the evidence, which shows that
he did not appeal the numerous NJPs he received over a period of 23 months and the absence of any indicator showing that he sought assistance in resolving his alleged marital difficulties, his contention about command’s counseling failures fails to show an error or an injustice.

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 _ ___WTM_ ___CG__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074306
SUFFIX
RECON
DATE BOARDED	20021003
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR .635-200 CH14
DISCHARGE REASON	A67.50
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	144.00
2.	A92.17
3.	A92.23
4.	A92.33
5.	A01.35
6.	A67.10