MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 July 2001
         DOCKET NUMBER: AR2001053507

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Mr. Eric N. Andersen		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 honorable.

APPLICANT STATES: In effect, that after completing his training he was sent home on leave before reporting to his unit and got sick and had to be admitted to the hospital in New York. The next day a military ambulance picked him up and took him to St. Albans Naval Hospital in Long Island, New York. He continues by stating that he remained there for a couple of weeks and because no one notified his commander, he was reported as absent without leave (AWOL) and placed under guard until he was returned to his base at Fort Devens, Massachusetts. When he arrived the commander insisted that he be tried under military law and had him incarcerated. While he was incarcerated, a warrant officer informed him that he could accept a medical discharge under honorable conditions and after a year had passed he could have it changed. He continues by stating that his health was monitored on a regular basis for an irregular heartbeat and that the warrant officer recommended that he be sent home because of his heart condition.

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

He was inducted in New York on 4 December 1958 and was transferred to Fort Dix, New Jersey to undergo his training. He received excellent to fair conduct and efficiency ratings while in training and was transferred to Fort Devens on 15 May 1959.

On 7 August 1959 he was convicted by a summary court-martial of being AWOL from 13 July to 15 July 1959. He was sentenced to a forfeiture of pay.

Nonjudicial punishment was imposed against the applicant on 10 November 1959 for exceeding the 150 mile limit on a 3-day pass and he was given extra duty as punishment. Nonjudicial punishment was again imposed against him on 20 January 1960 for the wrongful appropriation of a military vehicle and driving without a license. His punishment consisted of restriction to the company area.

On 24 February 1960, he was convicted by a special court-martial of being AWOL from 28 November to 1 December 1959 and from 2 December to 22 December 1959. He plead guilty to the charges and was sentenced to confinement at hard labor for 4 months and a forfeiture of pay.

The applicant underwent a neuro-psychiatric examination on 21 March 1960 and was deemed mentally responsible, able to distinguish right from wrong, to adhere to the right and to participate or conduct his own defense.

On 6 April 1960, the applicant’s commander notified him that he was recommending that he be separated from the service under the provisions of Army Regulation 635-208 for unfitness due to undesirable habits and traits of character. He cited as the basis for his recommendation that the applicant had been rehabilitatively transferred to his unit, that he had failed to respond to numerous counseling sessions, that he was unable to get along with his team chief, that the applicant had lied to him to get a 3-day pass to visit relatives in North Carolina and used the pass to violate the standing order that restricted the use of a pass to within 150 miles when he went to New York without funds and had to turn himself in at Fort Jay, New York. He went on to state that the applicant was scheduled for guard duty on 28 December 1959 and instead went to New York and turned himself into Fort Jay to receive funds to return to Fort Devens on 1 December 1959. After receiving the funds he again went AWOL from Fort Jay and remained absent until 22 December 1959, when he was returned to military control and was convicted by a special court-martial. He misappropriated a military vehicle without permission and at the time did not possess a military driver’s license. He deemed the applicant’s character and efficiency as unsatisfactory and recommended that he be furnished an Undesirable Discharge Certificate.

The applicant acknowledged receipt of the notification, accepted the assistance of counseling, declined to submit a statement in his own behalf and requested a hearing before a board of officers.

On 20 April 1960, while serving the portion of his court-martial sentence pertaining to confinement, he appeared before a board of officers, represented by counsel. After hearing testimony from the applicant and his chain of command, the board of officers recommended that the applicant be separated from the service under the provisions of Army Regulation 635-209 for unsuitability instead of the recommended separation under Army Regulation 635-208 for undesirable habits and traits of character. The board of officers also recommended that he furnished a General Discharge Certificate in lieu of the undesirable discharge recommended by the chain of command. The appropriate authority approved the findings and recommendations of the board on 28 April 1960.

On 5 May 1960, the convening authority remitted the unexecuted portion of the sentence of confinement at hard labor.

Accordingly, the applicant was discharged under honorable conditions on 6 May 1960 under the provisions of Army Regulation 635-209 for unsuitability. He had served 1 year, 1 month and 27 days of total active service and had 97 days of lost time due to AWOL and confinement.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities. An undesirable discharge was normally considered appropriate; however an honorable or general discharge was authorized.

Army Regulation 635-209, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unsuitability when it was determined that it was unlikely that an individual would develop sufficiently to participate in further military training and/or become a satisfactory soldier. An honorable or general discharge was authorized.

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. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

3. Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

4. The applicant’s contentions have been noted by the Board. However, given his otherwise undistinguished record of service during a short period of time, they are not sufficiently mitigating to warrant an upgrade of his discharge.

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

__rvo___ __hof ___ ___ena __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001053507
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/07/26
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1960/05/06
DISCHARGE AUTHORITY	AR635-209
DISCHARGE REASON	547/UNSUIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 547	144.4000/A40.00
2.
3.
4.
5.
6.