MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 July 2001
         DOCKET NUMBER: AR2001056266

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Donald P. Hupman, Jr.		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 undesirable discharge (UD) be upgraded.

APPLICANT STATES: In effect, that after his assignment to Korea in late December 1956, he along with six other infantrymen from his basic training unit did what they were told and worked very hard. However, in August 1957, he was confined to the company area indefinitely and did not receive day passes to go to the post exchange or weekend passes to go to either Seoul, Korea or to Japan for rest and recuperation. In a period of a few months, five of the seven infantrymen he was assigned with asked for and were granted transfers, his transfer request was rejected. At this time, he was still only
18 years of age and he became angry and confused because of the rejection. His response was to begin going absent without leave (AWOL), avoiding company laundry privileges, daily showers, shaving, and seeking females in
off-limit areas. He also indicates that his drinking increased and he received nonjudicial punishment (NJP) as a result of his discipline problems. He also indicates that the results of his psychiatric evaluation were excellent and he never criticized the Army for his having lost his veteran’s benefits. He concludes that his discipline problems and the resultant discharge were the result of his unending confinement and he was, in effect, treated like a prisoner of war (POW) in the Army he expected to make his career and forced to tolerate direct and indirect intimidation. In support of his application, he provided the enclosed expanded statement.

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

On 10 July 1956, he was inducted into the Army of the United States for 2 years at the age of 17. After his successful completion of his training, he was assigned to overseas duty in Korea.

In December 1956, the applicant arrived in Korea and was assigned to Company B, 13^th Engineer Battalion to perform duties as a pioneer. His Service Record (DA Form 24) documents no acts of valor, significant achievement, or service warranting special recognition. However, it does confirm an extensive disciplinary history, which includes his acceptance of NJP on three separate occasions and a trial and conviction by a summary court-martial (SCM).

On 27 January 1957, the applicant accepted NJP for being AWOL from 26 to
27 January 1957, which resulted in his being punished with 14 days of extra duty. On 14 February 1957, he again accepted NJP, this time for his failure to properly prepare for inspection, which resulted in punishment of 7 days of extra duty. On 20 February 1957, he accepted NJP for failing to report for extra duty and was punished with 7 days of extra duty. The record shows that the applicant did not appeal or contest any of these NJP actions.

On 27 June 1957, the applicant was tried and convicted of being absent without proper authority by a SCM. The resultant sentence included 30 days of
hard labor and a forfeiture of $30.00.

On 8 July 1957, the applicant underwent a psychiatric evaluation conducted by the Division Psychiatrist. This evaluation resulted in findings that he had the mental capacity to understand the nature of either administrative or disciplinary proceedings affecting his future and to cooperate in those proceedings; that he was free of mental defect, disease, and derangement; and he was able to distinguish between right and wrong and to adhere to the right and refrain from the wrong. Finally, the Psychiatrist found no medical or mental reason that would preclude his undergoing administrative separation proceedings if initiated by the command.

On 11 July 1957, the applicant’s unit commander completed a statement in which he recommended that the applicant be discharged from the Army. He cited as his reasons the fact that the applicant personal habits had been a continuing problem and he had been a constant disciplinary problem since he joined the unit. Included with the unit commander’s statement were similar statements recommending the applicant’s discharge from his platoon leader, platoon sergeant, and squad leader.

On 5 August 1957, a board of officers was convened to consider the applicant’s separation under the provisions of Army Regulation 635-208, with the applicant and his counsel present. The board of officers found evidence of undesirability under the meaning of paragraph 1c of Army Regulation 635-208, which rendered the applicant’s retention in the service undesirable. They recommended that the applicant be discharged from the service because of undesirable habits or traits of character and that he receive an UD.

On 8 August 1957, the separation authority approved the findings and recommendations of the board of officers. Accordingly, on 9 September 1957, the applicant was discharged after completing a total of 1 year and 2 months of active military service.

There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within its 15 year statute of limitations.
Army Regulation 635-208, in effect at the time, set forth the basic authority for the elimination of enlisted personnel having undesirable habits and traits of character. An Undesirable Discharge Certificate was mandated for members separating under these provisions.

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 his UD was unjust but finds this claim lacks merit and does not provide a sufficient basis for the requested relief. The evidence of record confirms that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and that the character of the discharge was commensurate with his overall record of service.

2. Further, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Board concludes that relief is not warranted in this case.

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 this 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

__FNE __ __SLP _ __DPH __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001056266
SUFFIX
RECON
DATE BOARDED	2001/07/17
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1957/09/09
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	Undesirable Habits and Traits of Character
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.