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ARMY | BCMR | CY2002 | 2002075469C070403
Original file (2002075469C070403.rtf) Auto-classification: Denied

MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE:      10 September 2002
         DOCKET NUMBER AR2002075469

         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
Mrs. Judy Blanchard-Miller Analyst


The following members, a quorum, were present:

Mr. Fred N. Eichorn Chairperson
Ms. Barbara J. Ellis Member
Mr. William D. Barr 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)

APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to a general discharge.


APPLICANT STATES : In effect, that while stationed in Germany his wife was having an affair. He left his unit to try and find her, which caused him to go absent without leave (AWOL). This happened on numerous occasions and resulted in him receiving a bad discharge. He thought that things would change after returning to the United States, but it did not and they divorced.

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

On 21 February 1970, the applicant enlisted in the Regular Army for 6 years, with 10 months and 27 days of prior service. He completed the required training and was awarded military occupational specialty 11B10 (Light Weapons Infantryman). The highest grade he achieved was pay grade E-4.

On 22 October 1970, the applicant was convicted by a special court-martial of failure to go at the prescribed time to his appointed place of duty and of three specifications of being AWOL from 22 to 30 June 1970, from 13 to 30 July 1970 and from 5 to 18 August 1970. He was sentenced to perform hard labor without confinement for 45 days, 45 days restriction, a forfeiture of $75.00 pay, and a reduction to pay grade E-1.

Between May 1971 and March 1972, the applicant accepted five nonjudicial punishments under Article 15, Uniform Code of Military Justice, for two occasions of being AWOL from 14 to 21 June 1971 and from 8 to 9 February 1972, for two occasions of disobeying a lawful order, for failure to repair, for dereliction in the performance of duty and for the unlawful possession of an illegal weapon, a knife with a four inch blade. His punishment included forfeitures, restrictions and extra duty.

On 18 April 1972, a mental and physical evaluation found the applicant fit for retention. He was found mentally responsible and able to distinguish right from wrong. He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. He was considered mentally competent to participate in board proceedings.

On 26 April 1972, the applicant was convicted by a summary court-martial of leaving his appointed place of duty without proper authority and of two specifications of being AWOL from 14 to 15 March 1972 and from 1 to 4 April 1972. He was sentenced to a forfeiture of $150.00 pay; 60 days restriction and a reduction to pay grade E-1.

On 29 May 1972, the company commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness. The commander’s recommendation was based on the applicant’s frequent incidents of a discreditable nature with military authorities. The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. He waived consideration, personal appearance, and representation before a board of officers.

On 21 June 1972, the commanding general approved the recommendation, waived further rehabilitation requirements and directed the issuance of a discharge under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate.

On 31 July 1972, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-212, for unfitness with a UD. He had completed 2 years, 3 months and 26 days of creditable active service.

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel. Paragraph 6a (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. A discharge UD 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. 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.

2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

3. The contentions of the applicant have been noted. However, the applicant’s record does not support his allegations.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

5. Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.


6. 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

__FNE __ __ BJE _ __WDB __ DENY APPLICATION



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



INDEX

CASE ID AR2002075469
SUFFIX
RECON YYYYMMDD
DATE BOARDED 2002/09/10
TYPE OF DISCHARGE (UD)
DATE OF DISCHARGE 1972/07/31
DISCHARGE AUTHORITY AR635-212 . . . . .
DISCHARGE REASON A50.00
BOARD DECISION (DENY)
REVIEW AUTHORITY
ISSUES 1. 144.5000
2.
3.
4.
5.
6.



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