MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 July 2001
         DOCKET NUMBER: AR2001057502

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Margaret V. Thompson		Member
Mr. William D. Powers		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 discharge under other than honorable conditions be changed to a medical discharge or at least upgraded to under honorable conditions.

APPLICANT STATES: That his 7^th grade education had a lot to do with what happened. First off, he lived off post and had a Class A pass to come and go when he was not on duty. One time their commander was on temporary duty. The applicant did not have duty so he went home as he usually did. When he returned Sunday evening, he was told he had missed Saturday night bed check and that the policy had changed that Friday. His First Sergeant told him that if he took the Article 15 the First Sergeant would give him back his rank in about a month. So he accepted the Article 15 and he did get his rank back in about a month. The second time he was absent without leave (AWOL) was when his wife was pregnant and went to the camp hospital. They gave her a colored doctor. This did not bother him but his wife was raised in the South. He asked about getting her another doctor but his First Sergeant said nothing could be done about it. He did not think this was true so he left and took his wife home. He was gone about a month, getting her set up, seeing another doctor, and basically saving his marriage. He received a court-martial when he returned. The morning after the court-martial he went before a board of officers who listened to his side of the story. He was suffering from depression and had been for months. He had hurt his back and the Army only gave him aspirin and he had to pay for his own medical care. The board found out he was telling the truth. He said he had lost faith in the Army and doctors and requested discharge rather than retention. As he was dismissed, he heard them talking about giving him a 209 medical discharge. Later, the sergeant in charge overheard him and another soldier talking about Vietnam and got mad at what he heard. Later that day the sergeant asked him what kind of discharge he was getting. He answered a 209 medical. The sergeant wrote something in his book and said 208 undesirable. He feels this sergeant somehow changed what the board had meant to happen. He feels if he had had a high school education he would have been smart enough to have questioned the sergeant’s action to someone higher at the time.

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

He was born on 7 April 1945. He had completed 7 years of grade school. He enlisted in the Regular Army on 11 April 1962. He was honorably discharged on 15 December 1963 for the purpose of immediately reenlisting on 16 December 1963.

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On 4 May 1964, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent from his unit from on or about 6:00 p.m. 2 May to on or about 5:25 a.m. 4 May 1964.

On 25 February 1965, the applicant was convicted by a special court-martial of being AWOL from 4 January – 10 February 1965. He was sentenced to be reduced to the lowest enlisted grade, to be confined at hard labor for 3 months, and to forfeit $48.00 pay for 3 months.

On 17 March 1965, the applicant completed an Army Regulation 635-208 separation physical. He was found qualified for separation with a physical profile of 111111 (considered to have a high level of medical fitness under all factors). On his Report of Medical History, SF Form 89, he noted his present health as “good.” He had checked that he had had mumps, a reaction to a serum, drug, or medicine (allergy to penicillin), a rupture (hernia repair at age 9), and venereal disease (gonorrhea in 1962). He checked “no” to the question if he had depression or excessive worry.

On 22 March 1965, the unexecuted portion of the applicant’s sentence to confinement at hard labor was remitted effective the date of his administrative discharge.

The applicant’s discharge packet is not available. Special Orders 62, Headquarters, U. S. Army Armor Center dated 22 March 1965 discharged the applicant with a discharge under other than honorable conditions under the provisions of Army Regulation 635-208 for unfitness.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts. The commander exercising general courts-martial jurisdiction was the convening and approval authority.

Army Regulation 635-209 set forth the basic authority for the separation of enlisted personnel for unsuitability. That regulation provided, in pertinent part, that a member with a character or behavior disorder, disorder of intelligence, or transient personality disorder due to acute or special stress and was unlikely to develop sufficiently to participate in further military training and or become a satisfactory soldier, would be discharged for unsuitability. The commander exercising special courts-martial jurisdiction was the convening and approval authority.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2. The Board notes the applicant’s level of education and his young age at the time of his enlistment and discharge. However, as the applicant states, he was a good soldier for over 2 years and should have been aware that being AWOL for over 30 days would result in disciplinary action.

3. The applicant was not eligible for a medical discharge under the provisions of Army Regulation 635-40 as there was no evidence he could not perform his military duties. A “209” discharge was not a medical discharge; it, too, was an administrative discharge although for unsuitability rather than unfitness. The applicant provides no evidence to show he was not initially recommended for a discharge under the provisions of Army Regulation 635-208. Since such discharge action must have been approved by the commander exercising general courts-martial jurisdiction, a sergeant could not have changed the reason for his discharge from unsuitability to unfitness. Although he had only two records of disciplinary action, considering the length of his AWOL the type of discharge given was appropriate.

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

__jns___ __mvt___ __wdp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057502
SUFFIX
RECON
DATE BOARDED	20010724
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19650327
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.