MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 29 July 1998
         DOCKET NUMBER: AC97-11482

         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 K. McCoy		Chairperson
Ms.	Margaret K. Patterson		Member
Mr.	George D. Paxson		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.

APPLICANT STATES: In effect, that he was young and had no idea what he was getting into when he entered active duty; that if he stayed out of trouble he could get a better discharge; that he was a good soldier but he got home sick; and that he now has bone cancer and would feel much better if his discharge were upgraded before he dies.

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

The applicant reenlisted in the Regular Army, for the period of service under review, on 4 May 1964 while at Fort Campbell, Kentucky. At the time the applicant reenlisted he had completed a total of 1 year, 7 months, and 10 days of honorable service. The applicant’s honorable service consisting of 7 months and 9 days in the United States Army Reserve, from 20 October 1962 to 19 April 1963, six months of which was his initial active duty for training (IADT); and
1 year and 1 day of active duty in the Regular Army beginning on 3 May 1963 and continuing until the reenlistment indicated above. When he began this period of service the applicant held the rank of private first class/E-3, and was serving in military occupational specialty 940.07 (Cooks Helper), with the additional skill identifier of P (Parachutist).

The applicant’s record documents no individual acts of valor, achievement or service warranting special recognition. However, the record does contain an extensive record of disciplinary infractions including three trials by special court-martial, and the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on two separate occasions.

On 4 September 1963 the applicant accepted an NJP for being found with an unclean room. His punishment for this offense was a reduction in rank to private/E-2.

On 1 December 1964 the applicant accepted a second NJP for failing to be at his prescribed place of duty and for disobeying a lawful order. His punishment included a reduction in rank to private/E-2 (suspended) and 14 days of restriction and extra duty.

On 25 January 1965 the applicant was tried by special court-martial for violation of Article 86 for being AWOL from 12 to 26 December 1964 and for breaking arrest on 1 and 8 January 1965. He was found guilty and sentenced to confinement at hard labor for 4 months (suspended for 6 months); hard labor without confinement for 45 days; forfeiture of $55.00 per month for 6 months; and reduction to the rank of private/E-1.

On 22 June 1965 the applicant was again tried by special court-martial for violation of Article 86 for being AWOL from 27 February to 12 May 1965. The applicant was found guilty and sentenced to confinement at hard labor for
6 months and forfeiture of $55.00 per month for 6 months.

On 21 December 1965 the applicant underwent his last trial by special court-martial for violation of Articles 95 and 86 of the UCMJ. His Article 95 violation was for escaping from lawful confinement on 16 November 1965; and his violation of Article 86 was for being AWOL from 6 to 16 October 1965. He was found guilty and sentenced to be reduced to private/E-1; confinement at hard labor for 6 months; and forfeiture of $83.00 per month for 6 months.

On 22 July 1963 the applicant’s unit commander notified the applicant of his intent to initiate elimination action, under the provisions of AR 635-208 for unfitness. The commander cited the reasons for the action as the applicant’s continued absence without leave and complete disregard for his moral obligation to his country.

The applicant , after being advised of his rights and the basis for the contemplated elimination action, elected to waive his right to have his case heard by a board of officers; to waive his right to counsel, and he elected not to submit a statement in his own behalf.

The applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army. The Board noted that the applicant’s record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which was authenticated by the applicant. This document identifies the reason and authority for the applicant’s separation. The reason for separation was frequent involvement in incidences of a discreditable nature with military or civilian authorities and the authority for discharge was
AR 635-208.

The DD Form 214 also documents that the applicant was discharged on
15 February 1966 with a UD. At the time of his discharge the applicant had completed 10 months and 13 days of his current enlistment, a total of
2 years, 6 months, and 23 days of credible service, and he had accrued 333 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. While the Board is empathetic with the applicant's medical condition this matter does not provide the Board a basis upon which to grant relief. The applicant's contention that he was young, immature and home sick at the time are not sufficiently mitigating to warrant relief. The Board notes that the applicant had already successfully served both in the Army Reserves and the Regular Army prior to the period of service in question which shows that he not only had ample opportunity to adjust to military life but had, in fact, already made the adjustment.

2. The Board noted the applicant’s contention that he was told if he stayed out of trouble he could get a better discharge. However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits and changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

3. Although the applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army. The Board noted that the applicant’s record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process. 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