MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:  BOARD DATE: 21 May 1998
         DOCKET NUMBER: AC97-08334

         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:

Mr.	Fred N. Eichorn		Chairperson
Mr.	Raymond V. O’Connor		Member
Mr.	James M. Alward		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)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to a general/under honorable conditions discharge (GD) or an honorable discharge (HD).

APPLICANT STATES: In effect, that his discharge was based on his not accepting an overseas assignment because he thought he had a guarantee to remain at Fort Bragg for the entire period of his reenlistment.

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

On 8 June 1960 the applicant reenlisted in the Regular Army for a period of
6 years while assigned at Fort Bragg, North Carolina. The applicant’s reenlistment paperwork includes a statement of understanding for reenlistment, authenticated by the applicant, which states in part that military necessity may make it necessary for the Army to effect his reassignment at any time to any other assignment within the continental United States or an overseas command. At the time of his reenlistment the applicant had completed 1 year, 3 months, and 28 days of honorable service; attained the rank of private first class/E-3; and held military occupational specialty (MOS) 120.07 (Pioneer).

The applicant’s record for the period of service under review documents no individual acts of valor, achievement or service warranting special recognition, and indicates the highest grade held by the applicant while on active duty was private first class/E-3. However, the record does contain an extensive record of disciplinary infractions including: one trial by summary court -martial; two trials by special courts-martial, and acceptance of company punishment on three different occasions.

On 14 September 1960 the applicant accepted company punishment for failure to repair for kitchen police and received as punishment 7 days of extra duty.

On 11 October 1960 the applicant was tried by special court-martial for violation of Article 86 for being AWOL from 20 to 28 September 1960. He was found guilty and the resultant sentence was 6 months of confinement at hard labor; forfeiture of $25.00 per month for 6 months; and to be reduced to the grade of private/E-1.

On 30 October 1960 the applicant accepted company punishment for failing to repair for kitchen police and he was punished with 14 days of extra duty. On
6 December 1960 he accepted his last company punishment for failure to repair for formation for which he was punished with 14 days of extra duty.


On 9 January 1961 the applicant was tried by summary court-martial for violation of Article 86 for being AWOL from 30 to 31 December 1960. The applicant was found guilty and sentenced to perform hard labor without confinement for
30 days.

On 27 February 1961 the applicant was again tried by special court-martial for violation of Article 86 for being AWOL from 9 to 21 February 1961. He was found guilty and sentenced to 6 months confinement at hard labor and forfeiture of $28.00 per month for 6 months.

On 20 March 1961 the applicant’s unit commander notified him of his intent to recommend elimination action on him, under the provisions of AR 635-208 for unfitness. The commander cited the applicant’s frequent debts and frequent incidents of AWOL as the reasons for his action. Also on 20 March 1961 the applicant, after being advised of his rights and the basis for the contemplated elimination action, elected to have his case heard by a board of officers; however, he indicated he did not desire counsel either military or civilian.

On 18 April 1961 an administrative separation board of officer’s convened to consider the applicant’s case. The applicant appeared without counsel at which time he was advised by the president of the board of the basis for the contemplated discharge and the type of discharge he might receive as a result of the board action. The applicant was given another opportunity to be represented by counsel which he again refused. The board after considering the evidence found the applicant unfit for further service based on his frequent incidents of a discreditable nature with military authorities, an established pattern for shirking, and an established pattern showing a dishonorable failure to pay just debts. The board recommended the applicant be separated from the service, under the provisions of AR 635-208 and be furnished a DD Form 258A (Undesirable Discharge Certificate).

The appropriate authority approved the findings of the board and directed the applicant be discharged with a UD. Accordingly, on 17 May 1961 the applicant was discharged after completing 8 months and 4 days of his current enlistment, a total of 2 years and 2 days of active military service, and accruing 96 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, it is concluded:

1. There was no credible evidence to support the applicant’s contention that he went AWOL because he had been told he would be allowed to remain at Fort Bragg by his enlistment officer. However, the record does contain a statement of understanding for enlistment, authenticated by the applicant at the time of his reenlistment, which makes clear the applicant was subject to reassignment anywhere at anytime based on the needs of the Army.

2. The Board examined the applicant’s record of service during the period of enlistment under review. There was full consideration of 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.

3. The Board also noted that the applicant requested a hearing by a board of officers (Administrative Separation Board), which recommended that he be discharged from the service. The Separation Authority approved the findings of the board of officers and directed separation. The findings of the separation board were that the applicant was unfit for further military service based on frequent incidents of a discreditable nature, shirking, and dishonorably failing to pay just debts; these findings clearly show AWOL was not the sole reason for separation. 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.

4. 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.

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

________ ________ ________ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director