MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001060838

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Richard T. Dunbar		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 be upgraded to a general discharge.

APPLICANT STATES: In effect, that he received an undesirable discharge during his first enlistment because he was young, did not have any parents and was too young to know anything. He goes on to state that he changed his name, came back into the Army and received an honorable discharge. He also states that while his undesirable discharge is not in his records, he would like to have it upgraded. In support of his application he provides copies of his reports of separation (DD Form 214) for his undesirable and honorable discharges as well as a copy of his name change.

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

The applicant was born on 14 June 1953 and enlisted in Fort Worth, Texas on 11 July 1972 for a period of 4 years, a cash enlistment bonus, assignment to Fort Hood, Texas, and basic training at Fort Ord, California.

He completed his basic training and was transferred to Fort Hood to undergo training as an armor crewman on 12 October 1972.

On 23 February 1973, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 16 February to 20 February 1973. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 18 May 1973, he was convicted by a special court-martial of being AWOL from 9 March to 20 March 1973. He was sentenced to confinement at hard labor for 14 days and reduction to the pay grade of E-1.

He was convicted by a special court-martial on 14 August 1973 of being AWOL from 25 June to 29 June 1973 and from 2 July to 17 July 1973. He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay. He was transferred to the Army Retraining Brigade at Fort Riley, Kansas to serve his confinement.

Although the facts and circumstances surrounding his discharge are not present in the available records, his original DD Form 214 and his Enlisted Qualification Record (DA Form 20) show that while at Fort Riley, his conduct and efficiency ratings were determined to be unsatisfactory.

On 18 December 1973, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness based on his involvement in frequent incidents of a discreditable nature with civil and/or military authorities. He had served 11 months and 5 days of total active service and had 183 days of lost time due to AWOL and confinement.

On 9 May 1977, the applicant was granted a name change by a Juvenile Court Judge in Tarrant County, Texas.

The applicant again enlisted in the Regular Army under his new name on 27 November 1979, for a period of 3 years and indicated at the time of his enlistment that he had never served in any Reserve Component or Regular branch of the Armed Forces. He also signed the enlistment contract indicating that his acceptance for enlistment was based on the information he provided and that if any of that information was found to be false or incorrect, his enlistment could be administratively terminated by the government or he could be tried by a Federal, Civilian or military court, and if found guilty, he could be punished.

He underwent training as a cavalry scout, was advanced to the pay grade of E-4 and served until he was honorably released from active duty (REFRAD) at Fort Riley on 26 November 1982, due to the expiration of his term of service (ETS). He had served 3 years of total active service and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

He enlisted in the Texas Army National Guard (TXARNG) on 6 December 1982 for a period of 3 years and continued to serve until he was honorably discharged on 1 September 1983 for the purpose of enlisting in the Louisiana Army National Guard (LAARNG).

He enlisted in the LAARNG on 2 September 1983 and continued to serve through a series of continuous reenlistments. He was promoted to the pay grade of E-6 and served until he was honorably discharged from the LAARNG on 1 October 1989, due to failure to meet Army weight controls standards. He was honorably discharged from the USAR on 26 July 1990.

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 13 of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.

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.

2. In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights. Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3. While the Board recognizes that the applicant subsequently enlisted in both the Regular Army and the National Guard and was honorably discharged after successfully serving in those components, the evidence of record clearly shows that he did so fraudulently. After changing his name, he enlisted under his new name and did not disclose his prior service or discharge under other than honorable conditions.

4. Although the applicant’s fraudulent enlistment is not an issue before the Board, the Board finds that to grant the applicant an upgrade of his undesirable discharge based on his subsequent service, that was obtained through fraud and deceit, would indicate that such behavior is condoned by the Board and serves as a basis for relief. However, the Board does not condone such conduct and finds no basis to upgrade a duly constituted discharge.

5. The Board has also noted the applicant’s contention that he was too young to know better when he committed the offenses for which he was discharged and finds it to be without merit. Many soldiers enlist at ages younger than the applicant, who was 19 years of age at the time of enlistment and successfully serve their enlistments without incident. The applicant has provided no evidence to support his contention and the Board finds no basis to believe that he did not know the difference between right or wrong at the time.

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

___jhr___ __rtd____ ___rjw __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060838
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/26
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/12/18
DISCHARGE AUTHORITY	AR635-200/UNFIT
DISCHARGE REASON	UNFIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/A51.00
2.
3.
4.
5.
6.