MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 October 2001
         DOCKET NUMBER: AR2001058975

         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:

Mr. Fred N. Eichorn	M .		Chairperson
Ms. Barbara J. Ellis	M .		Member
Mr. Melvin H. Meyer	M .		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 he received no trial for his type of discharge and was not represented by counsel. In support of his application he submits a copy of his WD AGO Form 53-58 (Enlisted Record and Report of Separation).

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 6 December 1945 as a truck driver (345). He served in the European-African-
Middle Eastern Theater of Operations from 5 June 1946 to 15 June 1948.

He was convicted by one special and five summary courts-martial of violation
of a uniform regulation, of failure to obey a lawful order from a noncommissioned officer, of disobeying a lawful order from a noncommissioned officer, of misbehaving in a disrespectful manner toward a noncommissioned officer, of being absent from his appointed place of duty, of breaking restriction on two occasions, and of being drunk on duty. His punishments consisted of forfeitures of pay and several periods of confinement at hard labor.

On 17 March 1948, the applicant’s commander submitted a request under the provisions of Army Regulation 615-369, to the next higher command, requesting that a board of officers convene to determine whether or not the applicant should be discharged prior to his expiration of term of service (ETS). He based his recommendation on the applicant’s courts-martial history and his disregard for all Army Regulations and military discipline.

On 22 March 1948, the applicant underwent a psychiatric evaluation, which stated that the applicant’s chief complaint was his frequent courts-martial and that his examinations were negative. It also stated that the applicant could distinguish right from wrong, was able to adhere to the right at the time of his offenses, and was mentally competent to defend himself. It further stated that there were no psychosis or neurosis revealed.

On 23 March 1948, orders were published appointing a board of officers, at the call of the senior member of the board, to determine if the applicant should be discharged prior to his ETS.

On 26 March 1948, he was ordered to appear before a board of officers on 1 April 1948, to determine if he should be discharged from the service under the provisions of Army Regulation 615-369, for inaptitude. The applicant appeared before the board without counsel and elected to testify in his own behalf. He stated that he liked and wanted to remain in the Army, that he had been in trouble frequently, and could not understand restrictions. He also stated that he could not remain in one place and wanted to roam around.


The board recommended that the applicant be discharged from the service under the provisions of Army Regulation 615-369, due to his lack of adaptability for military service. The appropriate authority approved the findings and recommendations of the board of officers on 2 April 1948.

The applicant was discharged under honorable conditions on 15 June 1948, under the provisions of Army Regulation 615-369, due to his lack of adaptability for military service. He had a total of 2 years, 6 months, and 25 days of creditable service.

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

Army Regulation 615-369, in effect at that time, provided guidance for the separation of enlisted personnel for unsuitability based on a demonstrated lack of adaptability for military service and required action by a board of officers. The individual could received an honorable or general discharge when discharge
was recommended under this regulation. Entitlement to counsel was controlled by Army Regulation 420-5.

The same regulation also stated that, upon receiving the request for discharge,
the next higher command (provided he is not below battalion or comparative level) will convene a board of three officers, one of whom will be a medical officer, to determine whether or not the individual should be discharged prior to his ETS.

Army Regulation 420-5, in effect at the time, set forth the basic authority for a board of officers for conducting investigations. It stated, in pertinent part, that a
board of officers was usually appointed under specific provisions of Army Regulations. It also stated that when the law or regulation so provided, an individual under investigation was entitled to have counsel. If the law or regulations do not so provide, such an individual was not entitled, as a matter of right, to be represented by counsel.

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 contentions that he received no trial for his type of discharge and was not represented by counsel. The evidence of record shows that the applicant’s commander submitted a request under the provisions of Army Regulation 615-369, to the next higher command, requesting that a board of officers convene to determined whether or not the applicant should be discharged prior to his ETS. Orders were published appointing a board of officers at the call of the senior member of the board.
2. The applicant appeared before the board without counsel and elected to testify in his own behalf. The board recommended that the applicant be discharged under the provisions of Army Regulation 615-369, due to his lack of adaptability for military service. The appropriate authority approved the findings and recommendations.

3. The Board notes that, in accordance with regulation in effect at that time, the applicant was not entitled, as a matter of right, to be represented by counsel.

4. The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

5. 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.

6. 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

__fe__ ___be_____ ___mm_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058975
SUFFIX
RECON
DATE BOARDED	20011018
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19480615
DISCHARGE AUTHORITY	AR .615-369
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189
2.
3.
4.
5.
6.