MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 March 2003
         DOCKET NUMBER: AR2002080332

         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:

Mr. John N. Slone		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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: That his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: In effect, that he was unjustly given an undesirable discharge because he reported in 1 day late during a permanent change of station from Fort Rucker, Alabama, to Fort Ord, California. He further states that a review of his record will show that he was treated unfairly and was not afforded an opportunity to state his case in the matter.

EVIDENCE OF RECORD: The applicant's military records, though somewhat incomplete, show:

He enlisted in San Fransciso, California, on 10 December 1973, for a period of 3 years. He completed his basic combat training at Fort Ord and was transferred to Fort Rucker, Alabama, to attend his advanced individual training (AIT). He was advanced to the pay grade of E-2 on 14 April 1974.

On 14 May 1974, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 21 May 1974, NJP was again imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay, extra duty, and restriction.

Upon completion of his AIT, he received orders transferring him to Germany with an effective reporting date of 28 November 1974. The applicant failed to report as ordered and was reported as being absent without leave (AWOL). He remained absent until he was returned to military control at Fort Ord on 2 December 1974.

On 20 December 1974, NJP was imposed against him for being AWOL from 28 November to 2 December 1974. His punishment consisted of a forfeiture of pay, extra duty and restriction.

It appears that the applicant was reassigned to an engineer company at Fort Ord because on 20 June 1975, NJP was imposed against him for being AWOL from his company at Fort Ord from 16 June to 17 June 1975. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and extra duty.

On 14 July 1975, NJP was imposed against him for dereliction of duty and being AWOL from 7 July to 8 July 1975. His punishment consisted of a forfeiture of pay and extra duty.

On 27 August 1975, he was convicted by a summary court-martial of being AWOL from 28 July to 30 July 1975 and from 1 August to 19 August 1975. He was sentenced to perform hard labor without confinement for 30 days, a forfeiture of pay and restriction.

On 15 September 1975, NJP was imposed against him for being AWOL from 2 September to 8 September 1975. His punishment consisted of a forfeiture of pay and extra duty.

On 4 December 1975, he again went AWOL and remained absent until he was apprehended by civil authorities and was returned to military control at the Presidio of San Francisco on 25 January 1976.

On 26 January 1976, the applicant's commander advised the applicant of his rights and preferred charges against him for the AWOL offense. He asked the applicant why he went AWOL and the applicant declined to provide an explanation.

On 2 February 1976, the applicant underwent a mental status evaluation and was deemed to be mentally responsible, able to distinguish right from wrong, and to adhere to the right. He was also deemed to have no mental illness.

On 4 February 1976, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unfitness, due to frequent involvement in incidents of a discreditable nature with civil and military authorities. He cited as the basis for his recommendation the applicant's disciplinary record (to include a pending special court-martial), his repeated AWOL offenses, and his uncooperative attitude towards superiors. He indicated that the applicant stated that he intended to continue his pattern of behavior. The commander went on to state that the applicant's behavior was not due to an incapacity to become a satisfactory soldier within the meaning of unsuitability, but was willful and intentional.

After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved the recommendation for discharge on 9 March 1976 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions at Fort Ord on 24 March 1976, under the provisions of Army Regulation 635-200, Chapter 13, for unfitness based on his involvement in frequent incidents of a discreditable nature with civil or military authorities. He had served 2 years and 15 days of total active service and had 90 days of lost time due to AWOL and confinement.

There is no evidence in the available records to show that the applicant 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 13 established policy and procedures for separating personnel for unfitness. Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense. A discharge under other than honorable conditions 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. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2. Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3. The applicant's contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record. The applicant's misconduct began as early as his AIT and continued up until the time of his discharge. Therefore, the board finds that his record of undistinguished service does not warrant an upgrade of his discharge.

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

___jm___ __js_____ __mm___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002080332
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1976/03/24
DISCHARGE AUTHORITY	AR635-200/CH13
DISCHARGE REASON	UNFIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/A51.00
2.
3.
4.
5.
6.