MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 November 2002
         DOCKET NUMBER: AR2002075789

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Sherri V. Ward		Member
Mr. Melvin H. Meyer		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 (GD) under honorable conditions be upgraded to a fully honorable discharge.

APPLICANT STATES: That he was separated as a result of an administrative separation board hearing. He and a sergeant were involved in a conflict and he asked for a transfer several times and he was denied.

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

On 12 December 1979, he enlisted in the Delayed Entry Program (DEP), in the US Army Reserve for 6 years. On 29 January 1980, he was discharged from the DEP and enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 36K (Tactical Wire Specialist). He completed the training requirements and he was awarded MOS 36K. On 8 May 1980, he was assigned to Schofield Barracks, Hawaii.

On 19 August 1980, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for being absent without leave (AWOL) from his unit from 27 May-18 June 1980. His punishment included reduction from pay grade E-2 to pay grade E-1, forfeiture of pay and 14 days of extra duty. On 2 September 1980, he was advanced to pay grade E-2.

On 16 December 1980, military police apprehended the applicant and some other individuals after approaching the car in which the applicant was driving and smelling marihuana. Less than 1 gram of marijuana was found during the search of the applicant's car. The applicant was charged with wrongful possession and use of marihuana.

On 30 December 1980, NJP was imposed against the applicant for wrongfully having in his possession 1 gram, more or less, of marihuana on 16 December 1980. His punishment included forfeiture of pay (suspended until 31 March 1980) and 14 days of extra duty.

Between December 1980 and the December 1981, the applicant was counseled numerous times for various offenses. He was counseled for being out of uniform; for parking in a reserved parking space that belonged to a command sergeant major; for not having his military identification card in his possession; for poor performance and lack of initiative; for failure to perform proper maintenance on equipment after a field exercise; for having a negative attitude; for tardiness; for traffic violations; for missing formation; for failure to obey a lawful order given by his commander; and for driving his personally owned vehicle on post after he was counseled not to do so.


On 21 May 1981, NJP was imposed against the applicant for wrongfully having in his possession drug paraphernalia -- the bottom half of a government pen containing marihuana residue -- on 15 May 1981. His punishment included reduction from pay grade E-2 to pay grade E-1 and forfeiture of pay (both suspended until 21 July 1981) and 14 days of extra duty.

On 13 August 1981, the applicant appeared in the Wahiawa (Hawaii) District Court and pled guilty to contempt of court (not further explained). He was sentenced to a $30.00 fine and no further action was taken by civil authorities. On 7 October 1981, his unit commander issued him a written reprimand and his post-driving privileges were suspended.

On 2 November 1981, the applicant's commander officially notified him that he was being recommended for discharge under the provisions of chapter 13, Army Regulation 635-200 for unsuitability. He was informed that the basis for the contemplated separation action was his extreme apathy towards the Army, his continued poor duty performance, and his ongoing history of unsuitability. It was noted that he had been counseled on several occasions without effect. He was also informed of the rights available to him. On an unknown date, he consulted with legal counsel and he requested a personal appearance before an administrative separation board.

On 3 December 1981, NJP was imposed against the applicant for making a claim against the United States Government in the amount of $437.00 for a military paycheck he alleged that he had not received; the claim was false and fraudulent. His punishment included reduction from pay grade E-2 to pay grade E-1, forfeiture of pay (suspended until 9 March 1982) and 14 days of extra duty.

On an unknown date, the applicant was notified that a board of officers would convene on 30 December 1981 to determine whether he should be discharged from the service for unsuitability before the expiration of his term of service.

On 30 December 1981, the applicant appeared with counsel before the board of officers. Verbal testimony and numerous counseling statements were submitted to the board. During the board proceedings, the applicant's unit commander stated that the applicant requested reassignment to Headquarter and Headquarters Company and that the chain of command decided against it. The applicant alleged that there was a personality conflict between himself and a staff sergeant; however, his commander indicated that he believed the bases for the applicant's problems were that he was not performing to standard.

The board concluded that the applicant was unsuitable for further retention in the military because of habitual patterns of apathy towards his duties and responsibilities and that rehabilitation would not produce the quality soldier desired by the Army. The board recommended that the applicant be separated due to unsuitability because with a GD.

On 6 January 1982, the appropriate authority waived rehabilitative requirements, approved the separation recommendation, and directed the issuance of a GD.

The evidence available also shows that the applicant was AWOL from 29 January-31 January 1982.

On 8 February 1982, the applicant was separated under the provisions of chapter 13, Army Regulation 635-200, for unsuitability-apathy with a GD. He had completed 1 year, 11 months and 13 days of creditable active military service. He also had 26 days of lost time due to being AWOL.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member is unfit or suitable for further service due to an established pattern of apathy. Army policy states that a GD, under honorable conditions is normally considered appropriate, but an honorable discharge may be granted.

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 applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3. Both the characterization of service and the narrative reason for separation are commensurate with the applicant’s overall record of military service.

4. The applicant's chain of command believed the conflict that occurred between the applicant and a staff sergeant was due to the applicant's lack of performance and that, given the applicant's attitude, a rehabilitative transfer would not be fruitful. During the applicant's separation process, the board also determined that a rehabilitative transfer would not produce the quality soldier the Army desired.

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

__jns___ __svw___ __mhm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075789
SUFFIX
RECON
DATE BOARDED	20021119
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19821113
DISCHARGE AUTHORITY	AR635-200, Chap 13
DISCHARGE REASON	A78.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7800
2.
3.
4.
5.
6.