MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 April 2003
         DOCKET NUMBER: AR2002077837

         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. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Thomas E. O'Shaughnessy, Jr.		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 under other than honorable conditions (UOTHC) discharge be upgraded to a fully honorable discharge.

APPLICANT STATES: That he is making this request so that he may be able to obtain medical care from the Department of Veterans Affairs (DVA). He contends that he is unable to work a 40-hour workweek as a general laborer due to having both of his legs broken during a motorcycle accident and a recent heart attack.

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

On 25 July 1980, the applicant enlisted in the Delayed Entry/Enlistment Program (DEP). On 2 September 1980, he was discharged from the DEP and he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 11B (Infantryman). He completed basic and individual training, he was awarded MOS 11B, and assigned to Company B, 2nd Battalion, 1st Brigade, 9th Infantry Division, Fort Lewis, Washington.

On 26 March 1981, nonjudicial punishment under the provisions of the Article 15, Uniform Code of Military Justice was imposed against the applicant for being disrespectful in language towards two noncommissioned officers (NCO's) who were in the execution of their duties, and for disobeying a lawful order given by an NCO on 9 March 1981. His punishment included the forfeiture of $100.00 pay for 1 month (suspended until 28 April 1981) and 5 days of extra duty. On 6 April 1981, the suspended portion of his punishment was vacated.

On 7 April 1981, NJP was imposed against the applicant for being disrespectful towards an NCO and for disobeying a lawful order given by an NCO. His punishment included verbal admonition; the forfeiture of $75.00 pay for 2 months and 14 days of restriction.

The applicant was absent without leave (AWOL) from his unit from 10-12 July 1981. On 13 July 1981, he received a rehabilitative transfer to Company B, 2nd Battalion, 1st Brigade, 9th Infantry Division.

On 17 July 1981, NJP was imposed against the applicant for being absent from his unit from 8-10 July 1981. His punishment included reduction from pay grade E-2 to pay grade E-1; the forfeiture of $250.00 pay for 2 months; and to be placed in the correctional custody facility (CCF) for 30 days.

On 4 August 1981, a bar to reenlistment was initiated against the applicant. The applicant's commander cited the following as the bases for the bar: the NJP that he received on 17 July 1981; numerous counseling statements that he had received since his rehabilitative transfer; and that his performance remained substandard. The commander also stated that the applicant's attitude had deteriorated; that he was disrespectful in language towards the first sergeant and various NCO's; that he refused to obey orders at the CCF; and that he was determined to be untrainable. He was also believed to be incapable of, and unwilling to be a soldier.

On 6 August 1981, the applicant under went a separation mental status evaluation that determined he was mentally responsible and qualified for separation.

Between April and August 1981, the applicant received nine counseling statements for various offenses to include: disobeying a lawful order on numerous occasions; poor duty performance; being extremely disrespectful in language on numerous occasions; being AWOL; and for elimination processing.

On 10 September 1981, the applicant's commander notified him that he was being recommended for separation under the provisions of chapter 14, Army Regulation 635-200, for misconduct-frequent incident of a discreditable nature with civil or military authorities with a UOTHC.

On the same date, the applicant consulted with legal counsel and he was advised of the nature of the contemplated separation action and its effects. He was further advised of the rights available to him. He was not entitled to consideration or personal appearance by a board of officers. He declined to submit a statement in his own behalf.

On 10 September 1981, the battalion commander recommended approval. On 11 September 1981, the brigade commander recommended approval. On
6 October 1981, the separation authority waived further rehabilitative requirements and approved separation with a UOTHC discharge.

On 15 October 1981, the applicant was separated under the provisions of chapter 14, Army Regulation 635-200, for misconduct-frequent incidents of a discreditable nature with civil or military authorities with a UOTHC discharge. His DD Form 214 shows that he had completed 1 year, 1 month and 11 days of creditable active service and he had 3 days of lost time due to being AWOL.

The available evidence does not show that the applicant has ever applied to the Army Discharge Review Board for an upgrade of his discharge under that boards 15-year statute of limitation.

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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3. The Board notes that the applicant had no medically disqualifying conditions at the time of separation. Therefore, the type of discharge directed and the reasons were appropriate considering the facts of the case.

4. Entitlement to veteran’s benefits is not a matter under the purview of this Board, but rests with the DVA. Further, the lack of entitlements does not provide a basis upon which to grant an upgrade of a discharge.

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

__aao___ __tbr___ __teo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077837
SUFFIX
RECON
DATE BOARDED	20030401
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19811015
DISCHARGE AUTHORITY	AR635-200, Chap 14
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6000
2.
3.
4.
5.
6.