MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 30 OCTOBER 2003
         DOCKET NUMBER: AR2003090038

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Mr. Ernest W. Lutz, Jr.		Member
Mr. Larry C. Bergquist		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 general discharge be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that he was only 17 years old at the time and that it was not explained in detail what he was signing when he was discharged. He also states that he has been a good citizen for 20 years. He submits no evidence in support of his request.

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

He enlisted and entered active duty on 7 July 1982. At the time of his enlistment he was approximately 1 month shy of turning 18 years old and had 12 years of formal education.

The applicant successfully completed basic and advanced individual training and in December 1982 was assigned to Fort Carson, Colorado. He was advanced to pay grade E-2 on 7 January 1983.

In July 1983, after being punished twice under Article 15 of the Uniform Code of Military Justice (UCMJ) for multiple occasions of reporting late for work and for leaving his place of duty without permission, and after receiving several counseling statements associated with the same issues, the applicant was barred from reenlisting.

In November 1983 his unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. The commander cited the applicant's field and company grade UCMJ actions and his 30 days of correctional custody in the Intensive Training Unit at Fort Carson as the basis for his recommendation. He also noted that in spite of these efforts, the applicant "has on repeated occasions shown up late for duty" and that retention on active duty would "have an adverse impact on military discipline, good order and morale of the unit.” The unit commander recommended that the applicant be given a general discharge.

A mental status evaluation, conducted on 28 December 1983, found the applicant fully oriented, his thought process clear and normal, and that the applicant was mentally responsible and able to understand and participate in his proceedings.

The applicant acknowledged receipt of the proposed separation action, consulted with counsel, and waived his attendant rights. In his acknowledgement statement he indicated that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unsatisfactory performance and that he understood the provisions of Chapter 13, Army Regulation 635-200, and its effects, of the rights available to him; and the effect of any action taken by him in waiving his rights.

The commander's recommendation was approved and on 31 January 1984 the applicant was discharged under honorable conditions for unsatisfactory performance. The applicant was 19 years old at the time of his discharge and had nearly 19 months of creditable service.

Army Regulation 635-200, Chapter 13, states that a soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Unsatisfactory performance includes soldiers without medical limitations, who have two consecutive failures of the Army Physical Fitness Test; soldiers who, in their commander's judgment, will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier; the soldier's retention would have an adverse impact on military discipline, good order, and morale; it is likely that the soldier will be a disruptive influence in present or future duty assignments; it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; or the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.

When separation for unsatisfactory performance is appropriate the commander will notify the soldier in writing that his or her separation has been recommended. The commander will cite specific allegations on which the proposed action is based and will advise the soldier of the following rights:

a. To consult with consulting counsel within a reasonable time (not less than 3 duty days). Soldiers may also consult with civilian counsel retained at their own expense.

b. To submit statements in his or her own behalf.

c. To obtain copies of documents that will be sent to the separation authority supporting the proposed separation.

d. To waive the above rights in writing.

The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

Army Regulation 635-200 also states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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.

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 contention that he was young, and did not fully understand the basis for his separation, is not supported by any evidence submitted by him, or contained in records available to the Board. The evidence that is available indicates that the applicant consulted with counsel and waived his attendant rights.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. His contention that his age and lack of understanding somehow justified or excused his behavior is without foundation. His successful completion of training and promotion to pay grade E-2, clearly indicated that the applicant was capable of honorable service.

3. 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.

4. He has submitted no evidence which would serve as a basis to upgrade his discharge as a matter of equity.

5. 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

__CLG __ __EWL__ ___LCB _ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090038
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031030
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.