MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 21 AUGUST 2003
         DOCKET NUMBER: AR2003087782

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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 discharge under other than honorable conditions be upgraded to general.

APPLICANT STATES: That he was trained as an infantryman, MOS (military occupational specialty) 11B1P, but assigned as a defense acquisition radar operator, MOS 16J1P, without any training. He found the duties too difficult. He applied for a transfer and did not receive a response to his request. This undermined his motivation. He states that the Board should consider his request in order to remove barriers to meaningful employment.

With his request, the applicant submits a letter of support from an assistant director of the Bethesda House, a Ministry of the Diocese of Venice, Florida.

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

He enlisted in the Army for three years on 9 February 1979 for training as an infantryman, with subsequent assignment to the 3d Infantry (the Old Guard) upon completion of training and if otherwise qualified.

He completed infantry training and parachute training at Fort Benning, Georgia, and in July 1979 was assigned to an air defense artillery battalion at Fort Bragg, North Carolina as a defense acquisition radar operator.

On 4 February 1980 he was awarded a secondary MOS of 16J0P.

On 30 January and 7 February 1980 the applicant underwent a psychiatric evaluation. The report of that evaluation indicates that the applicant had no significant evidence of mental disorder, but that he did abuse alcohol. He met the standards for retention in the Army, was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to participate in board proceedings. The examining official stated that the applicant showed some resentment with a depressive tone associated with his MOS and the Army. He stated that the applicant might feel that he was a failure in the Army, which caused him to be irritated, depressed, frustrated and exhibit a lack of motivation. He indicated that the applicant might show his anger or resentment by pouting, procrastination, stubbornness, and inefficiency; and that type of behavior reflected hostility, which he dared not express openly. He stated that the applicant showed poor impulse control by his habitual use of alcohol.

On 7 March 1980 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for disrespect to a noncommissioned officer.

Medical records show that he was seen and treated on various occasions while at Fort Bragg for a bunion and was diagnosed with hallux valgus of his left foot. He was operated on 27 March 1980 and discharged to duty on 31 March 1980.

On 23 April 1980 the applicant received nonjudicial punishment under Article 15, UCMJ, for breaking restriction, failing to go to his place of duty, wrongfully consuming alcohol while on duty, disobeying a lawful order, and for leaving his place of duty without authority to do so.

On 16 July 1980 the applicant received nonjudicial punishment for failure to go to his place of duty, and for disrespect to a noncommissioned officer.

The applicant was AWOL from 1 July 1980 to 7 July 1980, and on 23 July 1980 received nonjudicial punishment for his misconduct.
E

The applicant was AWOL from 1 August 1980 to 4 August 1980.

On 7 August 1980 charges were preferred against the applicant for breaking restriction, AWOL, and disobeying a lawful order.

The applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He stated that he was guilty of the charges against him, which authorized the imposition of a bad conduct or dishonorable discharge. He stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He declined to submit a statement in his own behalf.

The applicant's commanding officer recommended that the applicant's request be approved. There is no record, however, of the approval of that request in the applicant's official military personnel file. He was discharged on 29 August 1980.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

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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 request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2. The Board takes note of the applicant's contention that he was not working as an infantryman, the specialty for which he was trained, and that he was not a school trained radar operator. These conditions, however, are not an excuse for his numerous acts of misconduct. The Board also has noted the letter of support that he has received attesting to his good post-service conduct. None of these factors, either individually or in sum, warrant the relief requested.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 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 that requirement.

4. 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

__JNS __ __RWA__ __RKS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087782
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030821
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.