MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 March 2003
         DOCKET NUMBER: AR2003084160

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		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 discharge Under Other than Honorable Conditions be upgraded to Honorable.

APPLICANT STATES: The applicant provides neither an argument nor evidence, other than a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, to support an upgrade of his discharge under other than honorable conditions.

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

The applicant enlisted for 6 years in the US Army Reserve on 13 March 1979. On 27 March 1979, he enlisted in the Regular Army for 4 years. He successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky, and was awarded the military occupational specialty (MOS) 19D, Cavalry Scout.

The applicant’s record reveals that he was promoted to the rank and pay grade, Private First Class, E-3, with a waiver of time in service and time in grade with an effective date of 1 February 1980. This is the highest rank and pay grade he held on active duty.

On 14 August 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for willfully disobeying a lawful order to shave given him by his superior noncommissioned officer. The punishment imposed consisted of reduction to Private, E-2; forfeiture of $116.00; and correctional custody for 7 days. The applicant did not appeal the Article 15.

On 22 January 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for being derelict in the performance of duty, on 20 January 1981, as Charge of Quarters (CQ) by leaving the CQ Desk unattended and going to his room to lie down. The punishment imposed was a reduction to Private, E-1, and forfeiture of $100.00 for one month (the reduction and forfeiture were suspended until 22 April 1981). The applicant did not appeal the Article 15.

The applicant received an Article 15 on 13 April 1981. Although he was found guilty, the commander did not impose any punishment. Instead, he vacated the suspension, reduction to Private, E-1, and forfeiture of $100.00 per month for one month that had been imposed on him in the Article 15 that had been administered on 22 January 1981.

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The applicant was counseled on 6 May 1981. The counseling was made a matter of written record when it was recorded on a DA Form 4856, General Counseling Form. The applicant had failed to obey an order given by his superior noncommissioned officer, a sergeant first class, to sound off with cadence during physical training.

On 21 May 1981, the applicant was tried and found guilty by a summary court-martial of willfully damaging a vending machine, military property of the United States, on 8 March 1981; of being disrespectful in language on 10 April 1981 to his superior noncommissioned officer, a command sergeant major; and of failing to go to his appointed place of duty at the appointed time, Physical Training Formation, on 20 April 1981. He was sentenced to reduction to Private, E-1; forfeiture of $330.00 per month for one month; and to perform hard labor without confinement for 45 days. The sentence was adjudged on 21 May 1981 and approved on 27 May 1981.

On 17 June 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty where he was to perform hard labor on 12 and 13 June 1981. The punishment imposed was 14 days restriction, 14 days extra duty, and a forfeiture of $125.00. The punishment was suspended for six months. The applicant did not appeal the Article 15.

On 13 August 1981, the unit commander notified the applicant that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, Chapter 14. The specific reason for his proposed action was, "misconduct due to frequent acts of a discreditable nature with military authorities."

A mental status evaluation was conducted on 21 August 1981 and found the applicant's behavior normal. He was found to be fully alert and fully oriented. His mood was found to be level, his thinking process to be clear, his memory good, and his thought content also normal. The evaluator found him to be free of significant mental illness, able to distinguish right from wrong and able to adhere to the right. He was found to be mentally responsible and able to understand and participate in whatever administrative action deemed appropriate by command.

The applicant acknowledged the contemplated action on 21 August 1981, and waived consideration of his case by and appearance before a board of officers.

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He further acknowledged that he might encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued him. The applicant also understood that as a result of issuance of a discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State law. The applicant indicated that he wished to make a statement; however, none was found in the "discharge packet."

On 24 August 1981, the unit commander initiated action to discharge the applicant from the Army under the provisions of Army Regulation 635-200, Chapter 14, for misconduct because of frequent incidents of discreditable nature with civil or military authorities and an established pattern for shirking.

In his synopsis, the commander reported that the applicants "conduct has been unsatisfactory. [The applicant] has not responded to counseling; disciplinary action under the provisions of Article 15, UCMJ; or summary court martial."

The commander recommended that rehabilitative transfer be waived since it would create serious disciplinary problems or a hazard to the military mission, or to the individual, and that it would be inappropriate because the individual was resisting all rehabilitation attempts.

The applicant's chain of command recommended approval of the action and on
4 September 1981, the approving authority, a major general, directed that the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 14, and that he be provided an under other than honorable discharge certificate, DD Form 794A.

On 14 September 1981, the applicant was discharged in the rank and pay grade, Private, E-1, under the provisions of AR 635-200, Chapter 14, by reason of misconduct-frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable discharge. He was credited with 2 years, 5 months, and 18 days active military service.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

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taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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.

2. The applicant was properly notified of the discharge action. He acknowledged the notification, his right to legal counsel, and he stated that he understood the rights available to him.

3. The evidence of record shows that the applicant was counseled in the written form, accepted nonjudicial punishment on four occasions, and was subjected to a summary court-martial. As such, the quality of his service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel.

4. The applicant has provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that his service mitigated his unacceptable conduct. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5. The applicant has failed to submit evidence or has failed to show error or injustice in the process, which resulted in his discharge.

6. 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

__lls___ __cjp___ __kwl___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084160
SUFFIX
RECON
DATE BOARDED	20030320
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19810914
DISCHARGE AUTHORITY	AR 635-200 Chapter 14
DISCHARGE REASON	A64.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.6400
3.
4.
5.
6.