MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 August 2001
         DOCKET NUMBER: AR2001055224

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Gail J. Wire		Member
Mr. Fred N. Eichorn		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: In effect, that his general discharge should be changed to a hardship discharge.

APPLICANT STATES: In effect, that he was recommended for a hardship discharge before a board of officers; however, a chapter 13 was prepared and he was informed that it could be changed. In support of his application he submits a copy of his DD Form 214 (Report of Separation from the Service).

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 29 February 1972 as a food service specialist.

On 12 December 1972, he was punished under Article 15, UCMJ, for being
absent without leave (AWOL) from 4 to 11 December 1972 (7 days). His punishment consisted of a forfeiture of pay and 14 days restriction and extra duty.

On 18 December 1972, he was punished under Article 15, UCMJ, for being AWOL from 24 to 26 November 1972 (2 days). His punishment consisted of a forfeiture of pay and 10 days extra duty and restriction.

He was convicted by a summary court-martial on 14 February 1973 of being AWOL from 29 December 1972 to 3 February 1973 (36 days). His sentence consisted of confinement at hard labor for 20 days and a forfeiture of pay. The sentence was approved on 14 February 1973.

On 18 October 1973, he was punished under Article 15 for being AWOL from
7 to 11 October 1973 (4 days). His punishment consisted of a forfeiture of pay and 14 days extra duty.

Item 44 (Time Lost Under Section 972) of his DA Form 20 (Enlisted Qualification Record) shows that the applicant was AWOL from 3 to 6 November (4 days), from 7 to 14 November 1973 (8 days), and from 26 to 27 November (2 days).

The applicant underwent a separation medical examination on 30 November 1973 and was found qualified for separation.

The applicant underwent a mental evaluation on 30 November 1973, which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.

On 15 January 1974, the applicant was notified by his commander that he was being recommended for discharge under the provisions of AR 635-200, chapter 13, for unfitness. He based his recommendation on the applicant’s multiple AWOL offenses and his extreme bitterness toward authority.
After consulting with counsel, the applicant requested a personal appearance and consideration of his case by a board of officers. He also requested representation by counsel and elected not to submit statements in his own behalf. He acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration if a discharge under other than honorable conditions were issued.

On 7 February 1974, he was ordered to appear before a board of officers on 21 February 1974 to determine if he should be discharged from the service due to unfitness before his expiration of term of service (ETS).

The applicant appeared before the board and was represented by counsel. He elected to testify in his own behalf and stated in summary that he felt that his stepfather’s death, which caused financial and personal problems, was sufficient enough to warrant a hardship discharge.

On 21 February 1974, the board found the applicant unfit for further retention in the military and recommended that he be discharged from the service because of unfitness and issued a General Discharge Certificate.

On 5 March 1974, the Office of the Division Chief of Staff reviewed the recommendations of the board of officers and provided a recommendation to the approval authority, in which, he stated the board found the applicant unfit for further retention and recommended issuance of a general discharge, which was binding unless the approval authority decided to retain the applicant. He also commented that there was evidence of a possible hardship condition based on the applicant’s stepfather’s death, which left his mother to run a farm and care for three children. However, the applicant had trouble compiling supporting documents and considering all factors including his long history of AWOL, hardship condition, and the Board’s recommendation, the Division Chief of Staff’s Office recommended the approval authority approve the general discharge.

The appropriate authority approved the findings and recommendations of the board of officers on 7 March 1974.

The applicant was discharged on 14 March 1974 under the provisions of
AR 635-200, chapter 13, for unfitness based on his frequent incidents of a discreditable nature with military authorities and habitual shirking. He had a
total of 1 years, 2 months, and 27 days of creditable serve and 79 days of lost time due to AWOL and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge with its 15-year statute of limitations.

Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. At that time, paragraph
13-5a(1) provided for the separation of individuals for unfitness (frequents incidents of a discreditable nature with civil or military authorities). When separation for unfitness was warranted an undesirable discharge was normally issued by the separation authority.

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 Board notes the applicant’s contention that he was recommended for a hardship discharge before a board of officers, that a chapter 13 was prepared, and that he was informed that it could be changed. However, evidence of record shows that he was recommended by a board of officers, under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to his multiple AWOL offenses, a summary court-martial conviction, and his bitterness toward military authority. The Board also notes that there is no evidence in the available records, and that the applicant has provided no evidence to show that he was informed that his discharge could be changed.

2. The Board further notes that his hardship condition due to his stepfather’s death which caused financial and personal problems was taken into consideration; however, the board of officers found the applicant unfit for further retention and recommended issuance of a general discharge. It was also noted that the Division Chief of Staff reviewed the applicant’s case and also recommended a general discharge which was approved by the appropriate authority.

3. The applicant’s administrative separation was accomplished in compliance with applicable regulations. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

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.

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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

__iw___ ___gw___ ___fe___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001055224
SUFFIX
RECON
DATE BOARDED	20010809
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19740314
DISCHARGE AUTHORITY	AR 635-200 C, 13
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189
2.
3.
4.
5.
6.