MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 13 November 2003
                  DOCKET NUMBER: AR2003090022

         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. Arthur A. Omartian		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Ronald E. Blakely		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: In effect, that while he was in the Army he injured his groin area while repelling down a 300-foot cliff, that the medical officer would not put him on bed rest, and that he still suffers from this injury today. He also contends that he was almost shot during a live ambush drill. In support of his application, he submits a letter of explanation and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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

The applicant enlisted on 16 February 1979. He successfully completed basic training and One Station Unit Training in military occupational specialty 11B (infantry).

On 11 September 1979, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from his place of duty. His punishment consisted of a reduction to E-2 (suspended for 60 days), a forfeiture of pay, and extra duty.

On 3 December 1979, nonjudicial punishment was imposed against the applicant for failure to repair and possession of marijuana. His punishment consisted of a reduction to E-2, a forfeiture of pay, and 7 days of correctional custody.

On 16 July 1980, contrary to his pleas, the applicant was convicted by a special court-martial of being AWOL from 3 May 1980 to 6 May 1980 and for lifting a knife against a superior commissioned officer. He was sentenced to be reduced to E-1, to forfeit $299 pay per month for 5 months, and to be confined at hard labor for 135 days. On 16 July 1980, the convening authority approved the sentence. On 1 August 1980, the unexecuted portion of the sentence to confinement was suspended until 4 December 1980.

On 13 August 1980, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order. His punishment consisted of extra duty.

On 28 August 1980, nonjudicial punishment was imposed against the applicant for failure to repair, failing to obey a lawful order, and disobeying a lawful order. His punishment consisted of restriction and extra duty.

On 28 August 1980, the applicant's company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-33 for misconduct due to frequent involvement in incidents of a discreditable nature with military authorities. He cited the applicant’s four nonjudicial punishments and his special court-martial conviction.
On 4 September 1980, the applicant signed a statement in which he indicated that he had been counseled and advised of the basis for the recommended separation action, that he had been advised by counsel with regard to the rights available, that he waived consideration of his case by a board of officers, and elected not to submit a statement in his own behalf.

On 4 September 1980, the intermediate commander concurred with the recommendation for separation.

On 8 September 1980, the applicant elected not to undergo a separation medical examination. Competent medical authority reviewed the applicant's medical records and determined that a medical examination for separation was not required in his case.

On 11 September 1980, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. He also directed that the applicant be furnished a discharge under other than honorable conditions.

Accordingly, on 12 September 1980, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. He had served 1 year, 3 months, and 27 days of creditable active service with 90 days of lost time due to AWOL and confinement.

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. Chapter 14, paragraph 14-33b(1), provided for discharge for patterns of misconduct due to frequent incidents of a discreditable nature with civil or military authorities. A discharge under other than honorable conditions was normally considered appropriate.

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.

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. At the time of the applicant's discharge he had the opportunity to undergo a separation medical examination and point out his alleged groin injury; however, he elected not to do so.

3. The applicant's record of service included four nonjudicial punishments, one special court-martial conviction and 90 days of lost time and for that reason his record of service was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

4. 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.

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

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

AAO___ ECP_____ REB_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090022
SUFFIX
RECON
DATE BOARDED	20031113
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19800911
DISCHARGE AUTHORITY	AR 635-200 Paragraph 14-33b(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.