MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 November 2001
         DOCKET NUMBER: AR2001062387

         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. Raymond V. O’Connor		Chairperson
Mr. John P. Infante		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 upgraded.

APPLICANT STATES: In effect, that the 299th Engineer Battalion was being disbanded so he signed for an undesirable discharge. In support of his application, he submits a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) and a copy of his discharge document.

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

The applicant enlisted on 6 October 1961 for a period of 3 years. He successfully completed basic and advanced individual training and was transferred to Germany for duty as a supply clerk.

On 8 September 1962, the applicant was convicted by a summary court-martial of possessing a false pass with intent to deceive. He was sentenced to perform hard labor for 14 days, to forfeit $45 per month for 1 month and to be reduced to pay grade E-1. On 8 September 1962, the convening authority approved the sentence.

On 29 April 1963, the applicant was convicted by a special court-martial of being absent without leave (AWOL) for 1 ½ hours, disobeying a lawful order from a superior noncommissioned officer and breaking restriction. He was sentenced to be confined at hard labor for 3 months, to forfeit $50 pay per month for 3 months and to be reduced to pay grade E-1. On 29 April 1963, the convening authority approved the sentence but suspended confinement in excess of 1 month for 3 months. On 25 May 1963, the suspended portion of the sentence to confinement was vacated.

On 4 June 1963, the applicant was convicted by a summary court-martial of being AWOL for approximately 4 hours, leaving his appointed place of duty and disobeying a lawful order. He was sentenced to be confined at hard labor for
30 days. On 4 June 1963, the convening authority approved the sentence.

On 16 July 1963, the applicant was notified of his pending separation under the provisions of Army Regulation 635-208, for unfitness. After consulting with counsel, the applicant requested a hearing before a Board of Officers and elected not to submit a statement on his behalf.






On 23 August 1963, the applicant was convicted by a summary court-martial of being AWOL for approximately 3 hours. He was sentenced to be confined at hard labor for 30 days. On 23 August 1963, the convening authority approved the sentence.

On 29 August 1963, the applicant’s commander recommended that he appear before a Board of Officers under the authority of Army Regulation 635-208 for consideration of discharge from the Army prior to his normal expiration of term of service.

On 17 September 1963, the applicant withdrew his request to appear before a Board of Officers and waived all of his rights to a hearing before a Board of Officers.

On 21 September 1963, the applicant was convicted by a summary court-martial of absenting himself from his appointed place of duty and disobeying a lawful order issued by the first sergeant. He was sentenced to perform hard labor for 30 days and to be confined for 30 days. On 21 September 1963, the convening authority approved the sentence.

The applicant’s records also indicate that he received four Article 15’s during his enlistment. However, no other information is contained in the available records.

On 23 September 1963, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-208, for unfitness, and that he be furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged on 4 October 1963 under other than honorable conditions under the provisions of Army Regulation 635-208 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities. He had served 1 year, 7 months and 22 days of total active service with 130 days lost due to confinement.

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

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities. An undesirable discharge was normally considered appropriate.




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 reviewed the applicant’s brief record of service 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.

2. The Board also determined that his record of service which included four Article 15’s, four summary court-martial convictions, one special court-martial conviction and 130 days of lost time was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

3. 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.

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

RVO____ JPI____ WDP_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062387
SUFFIX
RECON
DATE BOARDED	20011129
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19631004
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	Unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.