MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 16 September 2003
                  DOCKET NUMBER: AR2003088917

         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. Fred M. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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: In effect, that his discharge under other than honorable conditions discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he never got a chance to tell his side of the situation. He feels that he was railroaded and that he has waited more than 20 years to have his discharge upgraded.

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

The applicant enlisted in the US Army Reserve in the Delayed Entry/Enlistment Program for 6 years on 21 February 1980. On 10 March 1980 the applicant enlisted in the Regular Army for a period of 3 years with a US Army Combat Arms Unit/Area of Choice Enlistment Option – 7th Infantry Division and training as an Infantryman, Military Occupational Specialty (MOS) 11B.

He successfully completed one stop unit training at Fort Benning, Georgia, and was awarded the MOS 11B.

On completion of his training and award of the MOS 11B, the applicant was assigned to Fort Ord, California, for duty as a Grenadier, MOS 11B.

The applicant’s record documents that the highest rank and pay grade he held on active duty was Private, E-2. There is no record or documentary evidence of any act of valor, achievement, or service that would warrant special recognition.

On 19 November 1980, the applicant accepted nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order given him by his superior noncommissioned officer to get a haircut, on 6 November 1980. The punishment imposed consisted of reduction to Private, E-1, suspended until 19 December 1980; forfeiture of $100.00; and 7 days in the correctional custody facility. The applicant did not appeal the punishment.

On 19 March 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for willfully disobeying a command given him by his superior commissioned officer to "be at ease," on 3 March 1981. The punishment imposed consisted of a forfeiture of $100.00 and 14 days extra duty. The applicant did not appeal the punishment.

A DA Form 4430-R Report of Results of Trial, filed in the applicant's military personnel records shows that on 15 June 1981, the applicant was tried, at Fort Ord, and was found guilty by a special court-martial of disrespect to a noncommissioned officer. He was sentenced to confinement at hard labor for 3 months and to forfeit $334.00 per month for 3 months. The sentence was adjudged on 15 June 1981. A copy of the court martial order is not available in his service personnel records.

The applicant was reassigned to the US Army Retraining Brigade, Fort Riley, Kansas, on 8 July 1981.

On 4 September 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for being derelict in the performance of duty by sleeping during his tour of guard on 2 September 1981. The punishment imposed was a forfeiture of $30.00 pay for one month, 7 days extra duty and 7 days restriction. The applicant did not appeal the punishment.

The applicant was counseled a myriad of times while he was at the Retraining Brigade at Fort Riley on his conduct and performance of duty. These sessions included counseling for: sleeping on duty, being derelict in performing his duty, displaying substandard performance, failing to follow the order of the charge-of-quarters to go to bed, failing to attend headcount formation, performing assigned duties in an unsatisfactory manner, displaying a lack of motivation, being argumentative and disrespectful in manner towards the cadre while being counseled, displaying poor reaction and attitude towards counselor criticism, being disobedient of an order to put on the correct type of T-shirt, and displaying a negative attitude.

On 16 September 1981, the unit commander initiated action to discharge the applicant from the Army under the provisions of Army Regulation (AR) 635-200, paragraph 14-33, due to frequent incidents of misconduct.

The unit commander notified the applicant on 17 September 1981 that discharge proceedings had been initiated against him. The applicant was formally advised by legal counsel, on 29 September 1981, that he was being considered for separation for misconduct under the provisions of AR 635-200, chapter 14, and of the basis for the contemplated action, the effects of the discharge, and the rights available to the applicant.

The applicant waived consideration of his case by and appearance before a board of officers. The applicant opted not to submit a statement in his own behalf and waived further representation by counsel.

The applicant acknowledged that he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued him. The applicant also understood that as a result of issuance of a discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State law.

The applicant underwent a mental status evaluation on 22 September 1981. The applicant's behavior was normal. He was found to be fully alert and fully oriented. His mood was found to be unremarkable, his thinking process to be clear, and his thought content normal. The evaluator found him to have the mental capacity to understand and participate in the proceedings, to be mentally responsible, and to meet the retention requirements of chapter 3, AR 40-501.

In his synopsis in the recommendation for the applicant's separation, the commander reported that the applicant "was sent to the Brigade for the purposes of receiving correctional training and treatment necessary to return him to duty as a well-trained soldier with improved attitude and motivation. However, individual's actions since arrival preclude accomplishment of the objective as evidenced by the resume of behavior, attitude and ability. Individual has demonstrated little desire for returning to duty. He has received counseling by members of the leadership team and members of the professional staff agencies. In my opinion, this individual possesses the mental and physical ability necessary to be an effective soldier, but his present record and his failure to react constructively to the rehabilitation program are indicative that he should not be retained in service."

The commander recommended that further rehabilitation and counseling be waived because the individual had not responded favorably to the counseling already given and the duties given him. In his opinion, the individual did not meet the criteria for further rehabilitation attempts.

The applicant's chain of command recommended approval of the action and on
6 October 1981, the approving authority, a colonel, directed that the applicant be discharged under the provisions of AR 635-200, chapter 14, and that he be discharged under other than honorable conditions.

On 9 October 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 involvement in incidents of a discreditable nature with civil or military authorities. He was credited with 1 year, 4 months, and 26 days active military service and had 74 days lost time due to confinement.

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.

AR 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, and conviction by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

AR 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.

AR 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.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant’s overall record of military service.

2. The evidence of record does not support the applicant’s contention that he was railroaded out of the Army. The applicant had the right to have his case considered by and to appear before a board of officers, but he waived these rights. The applicant had the right to provide a statement in his behalf, in effect, telling his side of the situation, concerning the separation action, but he elected not to make a statement.

3. The record shows that the applicant was convicted by a special court-martial, accepted nonjudicial punishment 3 times under Article 15 of the UCMJ, and was counseled many times for a variety of rules, regulations, policy and procedures violations. 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.

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

___fe ___ ___kh___ __mm___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003088917
SUFFIX
RECON
DATE BOARDED	2003/09/16
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/10/09
DISCHARGE AUTHORITY	AR 635-200, chapter 14
DISCHARGE REASON	Misconduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2. 394	144.0133
3.
4.
5.
6.