MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 28 October 2003
                  DOCKET NUMBER: AR2003088672

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Linda D. Simmons		Member
Ms. Marla J. Troup		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that his youth and poor judgment led to his discharge. The applicant did not provide any evidence in support of his application.

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

The applicant was born on 23 March 1956. He enlisted on 20 September 1973 for a period of 3 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 52D (power generator equipment repairman).

The following information pertaining to the applicant's nonjudicial punishments and civil conviction was provided in the applicant's discharge proceedings.

On 5 June 1974, nonjudicial punishment was imposed against the applicant for violation of Article 86 (absent without leave (AWOL)). His punishment consisted of a reduction to E-1 (suspended), extra duty, and restriction.

Action was initiated to discharge the applicant under the provisions of Army Regulation 635-206 for civil conviction. The applicant elected to have his case reviewed by a board of officers. The board elected to retain him on active duty.

On 6 September 1974, the applicant was convicted of Grand Larceny and sentenced to 2 years in the Virginia state penitentiary. The sentence was suspended and he was placed on probation to serve his remaining tour of service.

On 7 April 1975, nonjudicial punishment was imposed against the applicant for violation of Article 121 (larceny). His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, extra duty, and restriction.

On 8 April 1976, nonjudicial punishment was imposed against the applicant for violation of Article 86. His punishment consisted of correctional custody for
7 days (suspended), a forfeiture of pay, and extra duty.

On 21 May 1976, nonjudicial punishment was imposed against the applicant for violation of Article 86 (AWOL from 19 April 1976 to 11 May 1976). His punishment consisted of a reduction to E-1, a forfeiture of pay (suspended), extra duty, and restriction.

On 27 May 1976, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.
The applicant’s unit commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. He cited that the applicant had established a pattern of discreditable acts with both civil and military authorities and that he was clearly unfit for military service. The unit commander recommended that the applicant be furnished an undesirable discharge.

On 1 June 1976, the applicant underwent a mental status evaluation. He was found to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in chapter 3, Army Regulation 40-501.

On 10 June 1976, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived representation by counsel and elected not to submit a statement in his own behalf.

The intermediate commanders concurred with the recommendation for separation.

On 23 June 1976, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.
Accordingly, the applicant was discharged with an undesirable discharge on
28 June 1976 under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. He had served 2 years, 8 months and
16 days of total active service with 23 days of lost time due to AWOL.

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

Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability. Chapter 13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities. The regulation also stated that an individual separated by reason of unfitness would normally be furnished an undesirable discharge certificate.

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 (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.

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 Board considered the applicant's contention that his youth led to his discharge. However, the Board notes that the applicant was 20 years old at the time discharge proceedings for misconduct were initiated against him. Age alone is not a sufficiently mitigating factor.

3. The Board also considered the applicant's contention that poor judgment led to his discharge. However, the applicant's mental status evaluation determined that he was able to determine right from wrong.

4. The Board reviewed the applicant's record of service which included four nonjudicial punishments, one civil conviction for Grand Larceny and 23 days of lost time and determined that the applicant's quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

5. 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.

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

7. 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

RJW___ LDS_____ MJT_____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003088672
SUFFIX
RECON
DATE BOARDED	20031028
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19760628
DISCHARGE AUTHORITY	AR 635-200 Chapter 13, para13-5a(1)
DISCHARGE REASON	Misconduct due to frequent incidents of a discreditable nature with civil or military authorities
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.