MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 23 September 2003
                  DOCKET NUMBER: AR2002083104

         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:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Patrick H. McGann, 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 was young and did not fully understand the opportunity he was throwing away. He adds that he was angry with his father, who was a police officer, and he acted out against him. He states he has matured and he desires to enlist in the Army National Guard. He submits in support of his request three character reference letters that were written by his pastor, a church member, and his employer. The character references describe the applicant as being faithful, committed to serving in the church, hard working and honest. He is also attending school and doing well.

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

That he enlisted in the Delayed Entry Program (DEP) on 1 February 1978. On 21 February 1978, at age 18, he was separated from the DEP and he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 12B, Combat Engineer. He completed the required training, was awarded MOS 12B, and was assigned to Fort Campbell, Kentucky.

On 22 August 1978, nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 7 August 1978. His punishment included the forfeiture of $75 pay per month for 1 month and 12 days of extra duty and restriction.

On 29 November 1978, the applicant was convicted by a summary court-martial (SCM) of failing to go to his appointed place of duty at the time prescribed once on 15 October and twice on 16 October 1978; he was also convicted of willfully disobeying a lawful order on 16 October 1978. His sentence included the forfeiture of $150 pay per month for 1 month and 60 days of restriction.

The applicant was absent without leave (AWOL) from 9-16 January 1979, and from 1-5 May 1979. There is no evidence that he was punished for these periods of AWOL.

On 29 January 1979, he was convicted by SCM of failure to go to his appointed place of duty on 11 December 1978 and of willfully disobeying a lawful order on five separate occasions between 6-10 December 1978. His sentence included forfeiture of $310 pay per month for 1 month and confinement at hard labor for 30 days. On 30 January 1979, the sentence in excess of the forfeiture of $279.00 was set aside.

On an unknown date, the applicant was involved in a hit and run accident in the civilian community. The available record contains no further details about the accident, and the disposition of the civil case is unknown.

On 11 July 1979, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 6 May 1979 and for being AWOL from 7 May-19 June 1979. His punishment included a verbal reprimand.

On 2 November 1979, the applicant underwent both a medical examination and a mental status evaluation and it was determined he was qualified for separation.

On 5 November 1979, the applicant's commander officially notified him that he was being recommended for discharge under the provisions of chapter 14, AR 635-200, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. The applicant was advised that the basis for this recommendation were his repeated acts of misconduct; his NJP and court-martial actions; that he continuously went AWOL; failed to repair; his job performance continued to be unsatisfactory; and that all indications were a rehabilitative transfer would be pointless. He was also advised of the rights available to him.

On 6 November 1979, the applicant acknowledged notification and he waived further legal representation. He also waived a personal appearance before a board of officers. He did not submit a statement in his own behalf.

On 8 November 1979, the applicant accepted NJP for being AWOL from his unit from 9-20 August 1979; from 17 September-4 October 1979, and from
17-21 October 1979. His punishment included forfeiture of $100.00 pay per month for 1 month, and 21 days of extra duty.

On 8 November 1979, the intermediate commander recommended approval. On the same date, the approval authority approved the recommendation and directed that the applicant be separated for misconduct with a UOTHC discharge.

On 29 November 1979, the applicant was separated with a UOTHC discharge under the provisions of chapter 14, AR 635-200, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities. He had completed 1 year, 6 months, and 6 days of creditable military service. He also had 82 days of lost time due to being AWOL and in confinement.

On 20 October 1983, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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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, conviction 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. Army policy states that a UOTHC discharge is normally considered appropriate, but

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 type of discharge directed and the reasons for it were appropriate considering all the facts of the case.

4. The Board has taken into consideration the applicant’s contention that he was young; however, he applicant met entrance qualification standards to include age. Further, the Board found no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.

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

__jlp___ __aao___ __phm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083104
SUFFIX
RECON
DATE BOARDED	20030923
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19791129
DISCHARGE AUTHORITY	AR635-200 C14
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6000
2.
3.
4.
5.
6.