MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 July 2003
         DOCKET NUMBER: AR2002079864

         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. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Eric N. Anderson		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 (HD).

APPLICANT STATES: That he served without any problems until he got a new platoon sergeant who picked on him because he did not like him. Members of his platoon were willing to testify in his behalf, but his legal counsel said that they did not have enough rank. He was told that his discharge could be upgraded after a couple of years. He has an excellent post-service record and believes it would be in the interest of justice to upgrade his discharge so that he can reenlist. He also states that in 1986 he applied to the Board, but never received a response.

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

On 14 June 1978, the applicant enlisted in the Delayed Entry Program (DEP). On 5 July 1978, he was discharged from the DEP and he enlisted in the Regular Army for 4 years and training in military occupational specialty (MOS) 36C (Wire Systems Installer/Operator). He completed one-station unit training at Fort Gordon, Georgia, and, in January 1978, he was assigned to permanent duty at Fort Gordon in MOS 36C.

A memorandum of record, dated 1 June 1979, indicates that, on 31 May 1979, the pay officer (a second lieutenant) cited the applicant after he badgered the pay assistant about his leave and earnings statement, caused a disturbance in the pay line, and failed to demonstrate the appropriate military bearing and courtesies. When instructed by the pay officer to apologize for his actions, the applicant refused.

On 1 June 1979, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for failure to report to his place of duty on 15 and 16 May 1979. His punishment included reduction from pay grade E-2 to pay grade E-1, forfeiture of $75.00 pay per month for 1 month and 14 days of extra duty.

On 19 June 1979, 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. On 28 June 1979, the applicant consulted with legal counsel and acknowledged that he had been informed of the basis for the contemplated separation action and the rights available to him. He also requested a personal appearance before an administrative separation board.

On 14 August 1979, NJP under the provisions of Article 15, was imposed against the applicant for being absent without leave (AWOL) from his unit from 2-3 August 1979. On 14 September 1979, NJP was imposed against the applicant

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for being disrespectful in deportment towards a noncommissioned officer that was in the execution of his office. Both punishments included the forfeiture of pay, extra duty and restriction.

On an unknown date, the applicant was notified that a board of officers would convene on 3 October 1979 to determine whether he should be discharged from the service for unsuitability before the expiration of his term of service.

On 3 October 1979, the applicant appeared with counsel before an administrative board of officers. Verbal testimony and numerous counseling statements were submitted to the board showing that between February and June 1979, the applicant was counseled numerous times for various offenses to include: failure be present during a standby inspection; failure to report to perform his detail on time; harassing and causing an altercation with another soldier; being out of uniform and being disrespectful towards a commission officer; having in his possession a pocket knife; having liquor in the barracks; leaving the formation after his team chief told him not to leave; and disobeying lawful orders on several occasions. The applicant was continuously late for both morning and noon formations because he overslept in the mornings and he took naps during lunch instead of eating. The board was adjourned until 10 October 1979 to allow the applicant time to be evaluated by a doctor to determine if he were anemic or if there was a medical condition that was causing him to oversleep.

On 10 October 1979, the board reconvened and the recorder reported that the board had a chronological record of medical care stating that the applicant was not on any medication of significance and that his blood tests were normal. On the same date, the board concluded that the applicant was unsuited for further retention in the military because of apathy. The board recommended that the applicant be separated due to unsuitability with a GD.

On 18 October 1979, the appropriate authority waived further rehabilitative requirements, approved the separation recommendation, and directed that the applicant be issued a GD.

On 26 October 1979, the applicant was separated under the provisions of chapter 13, Army Regulation 635-200, for unsuitability-apathy, defective attitude or inability to expend effort constructively with a GD. He had completed 1 year, 3 months and 21 days of creditable active military service. He also had 1 day of lost time due to being AWOL.

On 29 April 1983, the applicant requested that the characterization of his service be changed from that of a GD to that of a fully HD and that his reenlistment code (RE) be changed from RE-3 and RE-3B to an RE Code that would allow reenlistment. The Army Review Boards Agency (ARBA), Support Division, St. Louis, Missouri, coordinated with the United States Army Reserve Components Personnel and Administration Center (RCPAC), St. Louis, Missouri, concerning the applicant's request. On 3 August 1983, the RCPAC notified, ARBA, St. Louis that the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) should have also included RE-3C and that it was the US Army Recruiting Command's (USAREC) responsibility to initially determine whether the applicant met the reenlistment criteria with a waiver and to process a request for a waiver, if appropriate.

On 27 September 1983, the applicant was provided a DD Form 215 (Correction to DD Form 214) to include RE-3C and was informed that he should return to his local recruiter to determine his eligibility for reenlistment and to process a request for a waiver, if appropriate.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.

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 unsuitability, 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, defective attitude or inability to expend effort constructively. 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.

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4. In 1983, the ARBA, St. Louis informed the applicant that he should contact his local recruiting command to determine his eligibility for reenlistment and that the USAREC had the responsibility to take the necessary action to process a waiver for him, if it was deemed appropriate. There is no evidence that the applicant's request for an upgrade his discharge was forwarded to this Board.

5. Further, the Board found no evidence of arbitrary or capricious actions by the command, or that any members of his chain of command were denied the opportunity to testify in his behalf. The applicant has provided no evidence to the contrary.

6. The US Army does not have, nor has it ever had a policy to automatically upgrade discharges or to accept requests for upgrade after a certain amount of time. Each case is decided on its own merits when an applicant submits a DD Form 149 (Application for Correction of Military Record) requesting a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason(s) for discharge, or both, were improper or inequitable. The applicant has failed to convince the Board of either.

7. The Board also took into consideration the applicant’s post-service work history and commends the applicant for his accomplishments. However, post-service accomplishments alone do not provide a basis upon which to grant relief.

8. 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___ __mvt___ __ena___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079864
SUFFIX
RECON
DATE BOARDED	20030715
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19791026
DISCHARGE AUTHORITY	AR635-200, Chap 13
DISCHARGE REASON	A40.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.4000
2.
3.
4.
5.
6.