MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 6 December 2001
         DOCKET NUMBER: AR2001059747

         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. Walter Avery, Jr.		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Harry B. Oberg		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 be upgraded to honorable or general.

APPLICANT STATES: In effect, that his father abused his mother. He ran away from home to join the Army for a better life; however, after witnessing the abuse he was unable to adjust to military life. Further, he was told that his discharge would be automatically upgraded six months after his discharge.

In support of his application he submits 11 letters of support from friends, family members, co-workers and church leaders. In summary, these supporters (some have known him 30 years) describe that as a teenager he was a nice, intelligent, and trustworthy young man who witnessed spouse abuse. His mother suffers mental problems to this day because of the abuse. When the applicant returned from the military he eventually was able to provide a home that enabled his mother to move in with him and end the abuse. The applicant has matured into an upstanding citizen, a role model for young men, a dedicated family man, and Christian.

COUNSEL CONTENDS : The American Legion brings to the Board’s attention the fact that the applicant has suffered the affects of a less than honorable discharge for over 25 years and asks, that consideration be given to up-grading his discharge based on clemency.

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

On 25 July 1973, the applicant entered on active duty in the Regular Army for a period of 2 years for training as a cook. At the time of his entry, the applicant was 17 years old and had tested at Category IV, the lowest learning ability category acceptable for enlistment. His records do not indicate whether he was a high school graduate. The applicant indicates that he left high school at the 10^th grade.

The applicant’s record documents that the highest permanent rank he held on active duty was private/E-2. The record contains no documented acts of valor, achievement, or service warranting special recognition.

On 20 June 1974, he was convicted by a special court-martial of two specifications of absence without leave (AWOL) for the periods 10 March 1974 to 6 May 1974 and 28 May 1974 to 3 June 1974. He was sentenced to confinement for 3 months, reduction to private/E-1, and forfeiture of $70 pay per month for 3 months.

The applicant was confined at the Army Retraining Brigade, Fort Riley, Kansas. During his confinement between 28 June 1974 and 9 July 1974, he was cited 11 times for infractions of the rules.

On 9 July 1974, the applicant was interviewed by a behavior specialist. The counselor noted that the session was requested by the applicant due to his desire for a discharge. The applicant reported a family environment that was fairly stable, although he did state his mother had a past problem with drinking. He reported no civilian police records and that he had completed 10 years of education with a “C” average. He quit school because he was tired of it, and wanted to be at home. He worked at odd jobs until he joined the Army. The counselor concluded there was some indication of dependency and immaturity and that the applicant appeared to have the ability to complete his obligation if he so desired. The applicant was cleared for any administrative action deemed appropriate.

On 12 July 1974, his commanding officer notified the applicant of his intent to initiate action to separate him from the Army under the provisions of chapter 13, Army Regulation 635-200 by reason of unfitness due to shirking.

On 23 July 1974, a summary of the applicant’s behavior during confinement was provided to the separation authority. The summary indicated that since the applicant’s assignment, he had continued his pattern of unacceptable behavior, attitude and ability. He had demonstrated a disregard for military authority and continually indicated no desire to return to duty. It was obvious that his primary objective was to be eliminated from the military service by any means. In the opinion of the writer, the applicant possessed the mental and physical ability to be an effective soldier; however, his established pattern of shirking precluded the desirability of his retention. He had received counseling by members of the leadership teams, and members of the professional staff agencies. It was anticipated that further correctional intervention would not be successful.

On 23 July 1974, after meeting with counsel, the applicant waived all of his rights to include the opportunity to submit statements on his own behalf. He further acknowledged that he understood that as the result of the issuance of an undesirable discharge (UD), he could be ineligible for many or all benefits as a veteran under both federal and state laws and he could expect to encounter substantial prejudice in civilian life.

On 26 July 1974, the approving authority directed that the applicant be discharged under the provisions of chapter 13, Army Regulation 635-200 and that he be furnished an UD discharge certificate.



His DD Form 214 (Report of Separation from Active Duty) reflects that on 30 July 1974, the applicant was discharged under Para 13-5a(1), Army Regulation 635-200, his character of service is shown as under other than honorable (UOTHC), and he was issued an UD discharge certificate. He was credited with 8 months and 11 days of total active military service, with 115 days lost time due to confinement and AWOL.

Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel. Chapter 13, then in effect, contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

On 6 March 1975, the Army Discharge Review Board notified the applicant of their denial of his request for upgrade.

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 applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation and clemency is not warranted at this time.

2. The applicant’s primary contention that as a result of witnessing his father abuse his mother his behavior had been altered so that he could not adjust to military life. However, during a counseling session, the applicant stated he came from a stable home environment and made no mention of such abuse or that his upbringing was the root of his misbehavior. The applicant also waived an opportunity to submit into the official records a statement on his own behalf which could have contained information he wanted Army officials to consider prior to determining his character of service and discharge. The records currently available do not contain nor did the applicant provide evidence to prove his contention. Neither is their any evidence to support his contention that he was counseled that his discharge would be upgraded after six months.

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____ ___hbo _ ___tap __ DENY APPLICATION




                           Carl W.S. Chun

         Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001059747
SUFFIX
RECON
DATE BOARDED	20011206
TYPE OF DISCHARGE	UOHC
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	144.9229.0000
2.
3.
4.
5.
6.