MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 July 2003
         DOCKET NUMBER: AR2003086541

         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. Joyce A. Hall		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen Y. Fletcher		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he would like his undesirable discharge changed to honorable. He informed his first sergeant that he needed out of the service because of family problems. He was informed by his first sergeant that the only way he could get out of the service was to take an undesirable discharge. He took the undesirable discharge; however, he feels that he
should have received a hardship discharge.

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

On 6 June 1972, the applicant enlisted in the United States Army for a period of
3 years. He completed the required training and was awarded military occupational specialty 64C20 (Motor Transport Operator). The highest pay grade he achieved was pay grade E-2.

On 22 March 1973, while assigned to the U. S. Army Overseas Replacement Station, located at Fort Jackson, South Carolina, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 15 November 1972 to
2 February 1973. His imposed punishment was to be reduced to pay grade
E-1 (suspended for 60 days) and a forfeiture of $100.00 pay for 1 month.

On or about 9 April 1973, the applicant departed for reassignment to the 342^nd Transportation Company, Fort McClellan, Alabama.

On 1 November 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL from 19 October to 23 October 1973. His imposed punishment was a reduction to pay grade E-1, a forfeiture of $150.00 pay per month for 2 months, and 30 days restriction and extra duty.

On 16 November 1973, the applicant accepted NJP for failure to go to his appointed place of duty on 11 November 1973. His imposed punishment was a forfeiture of $70.00 pay for 1 month (suspended for 60 days) and 7 days restriction (suspended for 60 days).

From January 1974 through February 1974, the applicant was counseled on
four separate occasions concerning his duty performance, his appearance, his conduct, and possible separation process.

On 11 February 1974, the applicant accepted NJP under Article 15, UCMJ for unlawfully carrying a concealed weapon, to wit: a .38-caliber pistol. His imposed punishment was a forfeiture of $100.00 pay for 1 month.

In a statement dated 25 February 1974, the applicant's first sergeant stated that he had been told by the applicant that he was having problems at home. The applicant submitted a hardship discharge in September 1973. However, he (the first sergeant) was informed that the applicant's application did not meet the requirements. The first sergeant informed the applicant of that decision, counseled him not to go AWOL, and told him further attempts would be made to help him resubmit his hardship discharge. Upon the first sergeant's return from a field exercise in Germany, he had another talk with the applicant concerning his problems and informed the applicant if he could get more proof of his demands to be home where he could assist his family, he (the first sergeant) would submit another application for a hardship discharge. The applicant never presented any further evidence of his hardship.

On 26 February 1974, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness (frequent involvement of a discreditable nature with military authorities). The commander's recommendation was based on the applicant's intentional shirking of his duties, failure to repair at the proper time, and being absent with leave. The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. The applicant acknowledged notification; he waived consideration, personal appearance and representation by counsel before a board of officers. He was afforded the opportunity to submit statements in his own behalf but declined to do so.

The applicant underwent a mental status evaluation and medical examination which cleared him for separation.

On 5 March 1974, the appropriate authority approved the recommendation and directed the issuance of an Undesirable Discharge Certificate. On 7 March 1974, the applicant was discharged under the provisions Army Regulation 635-200, chapter 13, for unfitness with an undesirable discharge. He completed 1 year,
6 months, and 10 days of creditable active service and he had 82 days of lost time.

Army Regulation 635-200, paragraph 3-7, provided 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 (emphasis added), 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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under
honorable conditions may be issued only when the reason for the soldier's
separation specifically allows such characterization.

Army Regulation 635-200, chapter 13 at the time, set forth the basic authority for the separation of enlisted personnel for unfitness or unsuitability. The regulation provided, in pertinent part, that commanders would separate a member under this chapter when, in the commander’s judgment, the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. When separation for unfitness was warranted, 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 Board considered the applicant's request to upgrade his undesirable discharge to honorable.

2. The Board noted the applicant's allegation that he should have received a hardship discharge. The Board also noted that his first sergeant tried to assist the applicant in obtaining a hardship discharge. The applicant was counseled not to go AWOL; however, he did. The first sergeant continued to assist the applicant with the hardship discharge. He requested more evidence from the applicant concerning his need to be home with his family. The applicant took no further action in the hardship discharge process. He continued with his acts of indiscipline until an administrative separation was warranted.

3. 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. The type of discharge and reason for separation were appropriate considering all the facts of the case.

4. Based on the applicant's record of indiscipline, the Board determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant did not meet the criteria for an honorable discharge. The Board also determined the applicant's service was not satisfactory; therefore, he did not meet the criteria for a general discharge.

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 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

_TSK___ _MHM____ _KYF___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002086541
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/07/01
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON	A51.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Carl W. S. Chun
ISSUES 1.	144.5000
2.
3.
4.
5.
6.