MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 July 2002
         DOCKET NUMBER: AR2001065556

         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. Stanley Kelley		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.

APPLICANT STATES: That the psychiatric evaluation conducted prior to his discharge shows that he had severe emotional problems. Since his discharge, he has completed drug rehabilitation and graduated from college. In support of his application, he submits a letter, dated 2 November 2001, from the Air Force Review Boards Agency; eight character reference letters; a diploma from a Junior College; a Certificate of Participation in the U.S. Skill Olympics; Fairbanks Hospital Progress Notes, dictated on 7 December 1979; a letter, dated 8 June 1989, from a Member of Congress; a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), dated
23 July 1985; a letter, dated 22 February 1990, from the State of Indiana Military Department to a Member of Congress; an undated DD Form 293; a DD Form 149 (Application for Correction of Military or Naval Record), dated 18 November 1989; a letter, dated 12 June 1989, from a Member of Congress; a letter, dated
8 June 1989, from a Member of Congress; a copy of his DD Form 214 (Report of Transfer or Discharge); a letter, dated 28 February 1990, from a Member of Congress; copies of his discharge proceedings; and a copy of a psychiatric evaluation conducted on 24 March 1970.

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

The applicant enlisted on 13 December 1968 for a period of 2 years. He successfully completed basic combat training; however, while in advanced individual training the applicant went absent without leave (AWOL) on 6 May 1969. He was apprehended by civil authorities on 26 June 1969 and returned to military control.

On 18 July 1969, the applicant was convicted by a special court-martial of being AWOL from 6 May 1969 to 26 June 1969. He was sentenced to forfeit $85 per month for 3 months and restriction for 30 days. On 5 August 1969, the convening authority approved the sentence.

The applicant’s military records show he was AWOL from 21 August 1969 to
10 September 1969; from 22 September 1969 to 10 November 1969; from
17 November 1969 to 17 November 1969; from 27 November 1969 to
27 November 1969; from 30 November 1969 to 30 November 1969; and from
4 December 1969 to 15 January 1970.

On 21 February 1970, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212, for unfitness. The unit commander based his recommendation for separation on the applicant’s record of AWOLs.

On 21 February 1970, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance before a board of officers and waived representation by counsel. Also, he elected not to make a statement on his own behalf.

On 27 February 1970, the applicant underwent a separation medical examination and was found qualified for separation with a physical profile of 111111.

On 24 March 1970, the applicant underwent a psychiatric evaluation and was diagnosed with a sociopathic personality disorder, severe. The applicant was cleared for any administrative action deemed appropriate by his command.

On 30 March 1970, the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation
635-212 for unfitness and that he be furnished an undesirable discharge. He cited the applicant’s repeated and lengthy periods of AWOL, excessive time lost in the service, resistance to authority and regulations, and a pattern of behavior which rendered him a complete loss to the service.

The intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 for unfitness and furnished an undesirable discharge.

The separation authority approved the recommendation on 10 April 1970 and directed that the applicant be furnished an undesirable discharge.

Accordingly, the applicant received an undesirable discharge on 28 April 1970 under the provisions of Army Regulation 635-212, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He had served 11 months and 2 days of total active service with 168 days lost due to AWOL.

The Board noted the two DD Forms 293 provided by the applicant in support of his claim. However, there is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

The Board also noted the DD Form 149, dated 18 November 1989, provided by the applicant in support of his claim. However, there is no evidence of record available to the Board which shows the applicant previously applied to the Army Board For Correction of Military Records.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6 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.

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.

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 contention that the psychiatric evaluation conducted prior to his discharge shows that he had severe emotional problems is partially supported by the evidence of record. Evidence of record shows that the applicant was diagnosed with a severe sociopathic personality disorder. However, the psychiatrist also determined that the applicant was cleared for any administrative action deemed appropriate by his command.

2. The Board considered the applicant’s contentions regarding his post service achievements. However, good post service conduct alone is not a basis for upgrading his 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. The Board reviewed the applicant’s record of service which included one special court-martial conviction and 168 days of lost time 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.

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

RVO___ JPI______ SK______ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065556
SUFFIX
RECON
DATE BOARDED	20020718
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19700428
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	Unfitness due to 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.