MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2002083077

         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		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: In effect, that his undesirable discharge (UD) be upgraded to a general (under honorable conditions) discharge (GD).

APPLICANT STATES: In effect, that the Board should review his 10 issues submitted through counsel's brief in support of his application.

COUNSEL CONTENDS: In effect, that the applicant’s UD was inequitable and unjust. Counsel contends that the applicant was unjustly forced to join the Army; that his ability to serve was impaired by his age, educational level (7th grade), Armed Forces Qualification Test (AFQT) scores (AFQT 42, Category III), and family/personal problems. Counsel contends that the applicant’s post-service conduct is a mitigating factor for upgrading his discharge. Counsel contends the applicant’s command exhibited improper conduct, was arbitrary and capricious, abused authority, and failed to meet counseling and rehabilitation requirements. In support of the application, counsel submits a brief with an appendix attached.

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

He enlisted in the Regular Army on 25 June 1971 for a period of 2 years. At the time of enlistment, the applicant was 17 years old, had an AFQT score of 42 and 7 years of formal schooling. Following successful completion of all military training, the applicant was awarded military occupational specialty (MOS) 94B, Cook, and was assigned to Fort Polk, Louisiana.

While en route to Fort Polk, the applicant did not report for duty and was declared absent without leave (AWOL) from 5 December 1971 to 23 October 1972 when he turned himself in to military authorities at Fort Belvoir, Virginia.

On 24 and 30 October 1972, the applicant’s chain of command counseled him. Court-martial charges were preferred against him.

On 14 December 1972, the applicant, appearing before a military judge, pled not guilty to the charge of AWOL. He was convicted by a special court-martial of the above charge and was sentenced to reduction to private/E-1 and 3 months’ confinement at hard labor (deferred). On 6 March 1973, the deferment was rescinded and the unexecuted portion of the entire sentence was remitted.

On 13 June 1973, the applicant accepted nonjudicial punishment for two specifications of AWOL from 8 to 10 June and 11 to 13 June 1973. His punishment consisted of reduction to private/E-1, 7 days’ extra duty, and forfeiture of $50.00 pay per month for 1 month.

On 18 June 1973, the applicant’s chain of command counseled him.

On an unknown date, the applicant was advised by his unit commander of his intention to recommend he be separated from the Army under the provisions of chapter 13, Army Regulation 635-200 for unfitness. The unit commander stated that discharge was recommended because of unacceptable habits and traits of character manifested by repeated commission of offenses. The unit commander stated that the applicant had repeatedly shown a lack of interest in becoming a satisfactory soldier and that his conduct indicated that he would never serve any useful purpose while in the Army. He concluded that retention of the applicant would adversely affect the military mission and no other disposition was considered appropriate.

On 21 June 1973, the applicant was advised by counsel that he was being discharged for unfitness, that he was entitled to a board of officers hearing, that he could request personal appearance before the board, that he could submit statements in his own behalf, and that he could request representation by counsel. The applicant declined all of the above rights.

On 21 June 1973, the appropriate authority waived further rehabilitative efforts and approved the applicant’s discharge with a UD. Accordingly, on 25 June 1973, the applicant was discharged. He was credited with 1 year and 29 days of creditable military service. His lost time due to AWOL is mentioned, but not specified.

The applicant applied to the Army Discharge Review Board (ADRB) on 2 June 1983 for a reason change and, on 1 November 1983, for an upgrade of his characterization of service. On 17 November 1983, the ADRB found that the applicant was properly and equitably discharged and denied his request.

Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of that regulation established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit for further military service.

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.

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2. The applicant’s 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 Board notes the applicant’s contentions and finds them unsupportable by the record. The record does show that the applicant was a substandard soldier who got into trouble almost immediately after enlisting and who repeatedly demonstrated that he was unfit for continued service. In an effort to correct the applicant's behavior, his chain of command utilized counseling and resorted to nonjudicial and judical actions. The Board finds no evidence that these efforts were in any way arbitrary or capricious and is satisfied that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4. The applicant's brief in support of his application is full of unsupported accusations of improper conduct by his superiors, failures to counsel or provide rehabilitation, allegations that he was too educationally challenged to be permitted to serve in the Army, or that his family problems were such that they hindered his ability to serve. The record does not support any of these claims and, as noted above with regard to counseling and rehabilitation, actually refutes them. As for the applicant's alleged family problems as his reason for going AWOL, this incident of misconduct adversely affected the quality of his service, brought discredit on the Army and was prejudicial to good order and discipline. It alone clearly diminished the quality of his service below that meriting a general or fully honorable discharge. Even if true that he had family problems, the Board determined that the applicant had many other legitimate avenues through which to obtain assistance or relief, without committing the misconduct which led to his separation from the Army.

5. The Board acknowledges the applicant's successful transition to civilian life and notes the accomplishments outlined in his application and/or in the brief submitted with his application. However, in review of the applicant’s entire service record, the Board found that these accomplishments did not overcome the reason for discharge and characterization of service granted.

6. The Board found no evidence that the applicant’s capacity to serve was diminished by his age, education background, or AFQT score. The Board noted that the applicant met entrance qualification standards to include age, AFQT score and educational background, and there was no evidence that the applicant was any less mature than other soldiers of the same age, educational background, and AFQT score who successfully completed military service. The Board notes that the applicant successfully completed all required military training and, as pointed out by the applicant in his brief to the Board, he successfully functioned as a cook in the Army.

7. The Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.

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

__ aao ___ __ tl ____ __ hbo ___ DENY APPLICATION




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

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INDEX

CASE ID	AR2002083077
SUFFIX
RECON
DATE BOARDED	20030828
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19920110
DISCHARGE AUTHORITY	AR 635-200, Chap 13
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0200
2.
3.
4.
5.
6.