MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 February 2002
         DOCKET NUMBER: AR2001061279

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Lester Echols		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 undesirable discharge be upgraded to honorable or general.

APPLICANT STATES: That the standards of progressive discipline were not followed in the treatment or discipline of the applicant. That under similar circumstances individuals of different pigmentation were not subjected to same procedures or policy. The applicant was treated differently as a result of his race. In support of his application, he submits a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).

The Board notes that the application indicates that additional documentation would be provided at the time of the applicant’s hearing. On 12 November 2001, the applicant’s attorney was notified by letter that a formal hearing was not automatic and that the additional documentation should be submitted to the Board by 1 December 2001. On 30 November 2001, a request for an extension to submit the additional evidence was granted until 11 January 2002. As of this date, no additional documentation has been provided to the Board.

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

The applicant enlisted on 11 December 1950 for a period of 3 years. He trained as a watchman.

The applicant’s DD Form 493 (Record of Previous Convictions) shows that on
8 June 1951, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 1 May 1951 to 14 May 1951. He was sentenced to be reduced to the lowest enlisted grade, perform hard labor without confinement for 30 days and forfeit $50 for one month. On 8 June 1951, the convening authority approved the sentence.

His DD Form 493 shows that on 6 October 1951, the applicant was convicted by a summary court-martial of failing to appear at the prescribed time to his appointed place of duty. He was sentenced to forfeit $30 for one month. On
6 October 1951, the convening authority approved the sentence.

His DD Form 493 shows that on 20 October 1951, the applicant was convicted by a special court-martial of sleeping while posted as a sentinel. He was sentenced to be confined at hard labor for 3 months and to forfeit $50 per month for 6 months. On 24 October 1951, the convening authority approved the sentence.

The applicant went AWOL on 1 July 1952 and returned to military control on
25 August 1952.

On 9 September 1952, the applicant was referred by his commanding officer to undergo a separation medical examination and mental status evaluation because of two episodes of AWOL and habituation to narcotics. The applicant was found physically qualified and there was no evidence of any mental disorder.

On 16 September 1952, the applicant’s unit commander recommended that he be separated under the provisions of Army Regulation 615-368, for unfitness. The unit commander based his recommendation for separation on the applicant’s three court-martials, that he was untrainable as a soldier and therefore not fit for military duty. The unit commander recommended that the applicant appear before a board of officers to determine whether or not he should be discharged for unfitness. The applicant appeared before a board of officers on
24 September 1952. The Board determined that the applicant “gives evidence of traits of character which render retention in the service undesirable.” The Board recommended that the applicant be discharged from the service because of unfitness. On 29 September 1952, the officer exercising general court-martial jurisdiction approved the recommendation.

Accordingly, on 31 October 1952, the applicant was discharged under the provisions of Army Regulation 615-368 for unfitness due to traits of character. He had served 1 year, 4 months and 6 days of total active service with 195 days lost.

Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. The regulation provided, in pertinent part, for the separation of personnel for the following reasons: (1) gives evidence of habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct; (2) unclean habits, including repeated venereal infections; (3) repeatedly committed petty offenses not warranting trial by court-martial; (4) habitual shirker; and (4) recommended for discharge by a board of medical examiners, not because of a physical or mental disability, but because he possesses a psychopathic (antisocial) personality disorder or defect, or is classified as having “no disease” by the board, and his record of service reveals frequent disciplinary actions because of infractions of regulations and commission of offenses, and/or it is clearly evident his complaints are unfounded and are made with the intent of avoiding service. The regulation also provided that when discharged because of unfitness an undesirable discharge will be furnished.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 considered the applicant’s contention that he was treated differently as a result of his race. However, there is no evidence of record, and the applicant has provided no evidence, to support this contention.

2. The Board reviewed the applicant’s record of service which included two summary court-martial convictions and one special court-martial conviction and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

3. The Board also determined that his record of service which included 195 days of lost time was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

4. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5. The applicant failed to convince the Board through the evidence submitted that his discharge was unjust and should be upgraded.

6. 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.

7. 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____ MKP_____ LE_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061279
SUFFIX
RECON
DATE BOARDED	20020207
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19521031
DISCHARGE AUTHORITY	AR 615-368
DISCHARGE REASON	Unfitness due to traits of character
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.