MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 July 2003
         DOCKET NUMBER: AR2003085117

         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. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Mr. Larry C. Bergquist		Member
Ms. Barbara J. Ellis		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 discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge.

APPLICANT STATES: That he needs medical benefits from the VA and that prior to the unfortunate circumstances that lead to his discharge, he was an exceptional soldier. In support of his appeal he submits a letter from Vietnam Veterans of America, Missouri State Council dated 17 July 2002, explaining that the applicant enlisted in the Army at age 15 and that prior to 1977, he was a model soldier with a good working relationship with his commanding officer (CO). The letter indicates that once the applicant was assigned a new CO, their personalities clashed and he found himself in an adverse environment and he could not get a transfer. The letter further indicates that at age 17, the applicant failed to have the maturity to endure his situation with the new CO until it changed, so he set out to get discharged any way that he could. The veterans service representative states that the applicant would not have made a bad decision had he not been pushed by his superior officer and that when he was offered a discharge UOTHC instead of trial by a court-martial, he accepted the discharge UOTHC just to get out of his intolerable situation. The applicant also submits copies of letters and documents maintained in his Official Military Personnel File.

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

On 1 May 1975, he enlisted in the United States Army Reserve (USAR) for 6 years, at age 17, with parental consent, in Kansas City, Missouri, in the Delayed Entry Program. On 12 June 1975, he enlisted in the Regular Army for 4 years in the pay grade of E-1 and he successfully completed is training as an engineer equipment repairman. On 10 October 1975, he was transferred to Fort Stewart, Georgia.

He was promoted to the pay grade of E-2 on 12 October 1975, to pay grade E-3 on 28 June 76 and to pay grade E-4 on 1 May 1977.

The applicant was counseled on 16 May and 18 May 1977, for being late for formation. During his counseling sessions he was informed that he should make sure that he was on time for all formations because missing them could be bad for his military career. He was further informed that he was a junior leader and that the younger troops looked to E-4s and above for guidance and leadership. He was also informed that any problems that he had, military or personal, should be brought to the attention of his chain of command.

Nonjudicial punishment (NJP) was imposed against the applicant on 18 May 1977, for being absent from his place of duty on 12 May 1977. His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 13 June 1977, NJP was imposed against him for being absent from his place of duty on 20 May, 24 May and 31 May 1977. His punishment consisted of a forfeiture of pay, restriction and extra duty.

Military police (MP) reports show that the applicant was apprehended by civil authorities for attempted suicide and public drunkenness on 4 July 1977. He was placed in confinement until he was released to military control on 5 July 1977 pending appearance in court on 13 July 1977.

On 10 July 1977, the applicant charged with driving 71 miles per hour in a 55 mile per hour zone and larceny. He was given an option of appearing in United States Magistrate Court or to make a settlement out of court.

The applicant was served with a warrant for contempt of court on 30 July 1977. The MP report shows that he paid a $75.00 fine and was released from confinement.

On 17 August 1977, the applicant underwent a mental status evaluation and was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right. He was cleared for administrative disposition as deemed appropriate by his command.

On 15 September 1977, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for misconduct. He acknowledged receipt of the notification and after consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf.

The appropriate authority approved the recommendation for discharge on 11 October 1977. Accordingly, on 13 October 1977, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 13, for misconduct based on frequent incidents of a discreditable nature with civil and military authorities. He had completed 2 years, 3 months and 11 days of total active service.

On 31 August 1989, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 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 is 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. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3. The Board has noted the applicant’s contentions. However, there is no evidence of record that support his contention that there was simply a personality clash between the applicant and his CO. The evidence of record clearly shows that he had NJP imposed against him twice, he was counseled at least twice and he was frequently involved with civil authorities as a result of his acts of misconduct.

4. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that he was 19 years old at the time of his acts of misconduct and it appears that the character of his discharge is commensurate with his overall record.

5. 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.

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

___lb ___ ___be___ ___ra ___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003085117
SUFFIX
RECON
DATE BOARDED	2003/07/10
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19771013
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	CHAPTER 13
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 626	144.6000
2. 656	144.6400
3.
4.
5.
6.