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ABCMR Memorandum of                                                                    AC97-08813
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        
	     
	BOARD DATE:              24 June 1998                
	DOCKET NUMBER:     AC97-08813

	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.  The following members, a quorum, were present:

| Ms. | Karen J. Newsome | | Chairperson
| Mr. | Robert W. Garrett | | Member
| Mr. | James P. Huber | | Member

	Also present, without vote, were:

| Mr. | Loren G. Harrell | | Director
| Mr. | Joseph A. Adriance | | Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he would like the upgrade to enhance his future job opportunities.

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

On 18 June 1964 the applicant entered the Regular Army for 3 years at the age of 17.  He successfully completed basic training at Fort Leonard Wood, Missouri. Upon completion of basic training the applicant was assigned to Fort Hood, Texas, for on the job training in military occupational specialty (MOS) 94B (Cook).

The applicant’s record documents no acts of valor, achievement, or service warranting special recognition and indicates the highest rank he held on active duty was private/E-2.  However, it does include an extensive history of disciplinary infractions which includes two convictions by special court-martial, and acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on two separate occasions.

On 15 July 1964 the applicant accepted an NJP for being disrespectful to a superior commissioned officer on 15 July 1964.  His punishment for this offense was forfeiture of $18.00 and 14 days of restriction and extra duty.

On 22 December 1964 the applicant accepted a second NJP for willfully damaging government property on 19 December 1964.  He was punished with a forfeiture of $23.00 and 14 days of restriction and extra duty.

On 13 May 1965 the applicant was tried by special court-martial for violation of Article 86 for being AWOL from 30 January to 9 August 1965.  He was found guilty and was sentenced to be confined at hard labor for was 6 months and to forfeit $50.00 per month for 6 months.

On 30 August 1965 the applicant was again tried by special court-martial for violation of Article 86 for being AWOL from 14 June to 13 April 1965.  He was found guilty and the resultant sentence included 6 months of confinement at 
hard labor and a forfeiture of $55.00 per month for 6 months.

On 20 September 1965 the applicant’s unit commander recommended the applicant be separated, under the provisions of AR 635-208 for unfitness.  The commander cited, as his reasons for taking the separation action, the applicant’s pattern of incidents of a discreditable nature.  

Also on 20 September 1965 the applicant was advised of his rights and completed a statement in which he declined representation by counsel and waived his right to have his case heard by a board of officers.

On 1 October 1965 the appropriate authority approved the separation action, the applicant’s waiver of his right to have his case heard by a board of officers, and directed the applicant be discharged with a UD.  Accordingly, on 11 October 1965 the applicant was discharged after completing 7 months and 17 days of credible active service and accruing 249 days of time lost 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 635-208, then in effect, provided in pertinent part, the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals discharged under this regulation would normally be issued a UD.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board noted the applicant’s desire to improve his employment opportunities.  However, after carefully examining the applicant’s record of service during the period of enlistment under review.  Giving full consideration to all faithful and honorable service as well as infractions of discipline, the extent thereof, and the seriousness of the offenses.  The Board concluded that the discrediting entries in the applicant’s record were not mitigated by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed.

2.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military 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 the aforementioned 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director