MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002074414

         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. Joann H. Langston		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Richard T. Dunbar		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 honorable.

APPLICANT STATES: That at the time he had to keep leaving his training because of his wife’s medical condition. His wife has since passed away and he desires to join the Army Reserve.

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

He enlisted in Los Angeles, California, on 12 November 1981, for a period of 4 years, training as an infantryman, assignment to the 7^th Infantry Division at Fort Ord, California, and a $5,000 enlistment bonus. He indicated that he was single with no dependents at the time of his enlistment and was transferred to Fort Benning, Georgia, to undergo his training.

On 15 December 1981, while attending his basic combat training, nonjudicial punishment (NJP) was imposed against him for gambling. His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 17 February 1982, while attending his advanced individual training, NJP was imposed against him for failure to secure his uniforms. His punishment consisted of a forfeiture of pay (suspended for 30 days), extra duty and restriction.

He completed his training and was transferred to Fort Ord on 26 February 1982. He was married on 6 March 1982 and was advanced to the pay grade of E-2 on 12 May 1982.

The applicant went absent without leave (AWOL) on 13 July 1982 and remained absent until he surrendered himself back to his unit on 15 July 1982. The record is silent as to any punishment imposed for that offense.

On 4 October 1982, NJP was imposed against him for four specifications of failure to go to his place of duty (accountability and physical training formations). His punishment consisted of a forfeiture of pay, extra duty and restriction.

The applicant underwent a psychiatric evaluation on 14 September 1982 and was found able to distinguish right from wrong and to adhere to the right. He was deemed mentally responsible to participate in board or legal proceedings.

On 22 October 1982, the applicant’s commander directed that his advancement to the pay grade of E-3 be blocked because the applicant’s duty performance did not warrant advancement consideration at that time.

On 7 November 1982, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He cited as the basis for his recommendation the applicant’s failure to respond to numerous derogatory counseling statements, his unsatisfactory performance and his disciplinary record. He also indicated that the applicant was extremely unsuited for military service, that he was apathetic, had a negative attitude and was untrainable. He also indicated that the applicant had been sent to the Correctional Custody Facility (CCF) and was removed from that facility because of his misconduct (destroying government property and disobeying lawful orders). He deemed the applicant a rehabilitation failure and opined that all efforts to help him overcome his problems had been without success.

The applicant again went AWOL on 11 November and he remained absent until he surrendered to authorities at his unit on 14 November 1982.

On 24 November 1982, after consulting with counsel, the applicant waived his rights, acknowledged that he understood the effects a general discharge would have on him in civilian life and elected not to make a statement in his own behalf.

The appropriate authority approved the recommendation on 3 December 1982 and directed that he be issued a General Discharge Certificate.

Accordingly, he was discharged under honorable conditions on 16 December 1982, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He had served 1 year and 1 month of total active service and had 5 days of lost time due to AWOL.

A review of the available records, to include the numerous counseling statements included with his administrative separation packet, show no evidence that the applicant ever surfaced to his chain of command that he was experiencing personal or medical problems with his wife or family. The applicant was afforded an opportunity to assert his position every time he was counseled and he chose to simply concur with the counselings and not to submit matters in his own behalf.

There is no evidence 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 for unsatisfactory performance and who were unsuitable for further military service. An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. A discharge under other than honorable conditions is 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 under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. The applicant’s contentions have been noted by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his misconduct and his otherwise undistinguished record of service during such a short period of 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

___mvt__ __jhl ____ ___rtd___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074414
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/17
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1982/12/16
DISCHARGE AUTHORITY	AR635-200/ch13
DISCHARGE REASON	Unsat perf
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 730	144.7000/a78.00
2.
3.
4.
5.
6.