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ARMY | BCMR | CY2002 | 2002066452C070402
Original file (2002066452C070402.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 May 2002
         DOCKET NUMBER: AR2002066452

         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. P. A. Castle Analyst

The following members, a quorum, were present:
Mr. Fred N. Eichorn Chairperson
Mr. Roger W. Able Member
Ms. Paula Mokulis 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)

APPLICANT REQUESTS

 : That his undesirable discharge be upgraded to honorable.

 APPLICANT STATES : That he has broken no laws, leads a good life, and that he did what he did in self defense against five other people. He also states he has no evidence to submit. He asserts that he was young and had never been away from home in a foreign country and not used to drinking. He says that he believes he was wrong but not enough to be discharged.

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

The applicant enlisted on 17 March 1960 for a period of 3 years. He successfully completed his training and was then transferred to Germany as a lineman on 9 August 1960.

The applicant was convicted by a summary court-martial on 21 August 1961, of
being absent without leave from 12 August to 13 August 1961. He was sentenced to reduction to the pay grade of E-2 and a forfeiture of pay. Two months later, he was convicted by a summary court-martial of being absent without leave from 17 September to 20 September 1961. He was sentenced to hard labor for 30 days, reduction to the pay grade of E-1, and a forfeiture of pay.

On 12 October 1961, the applicant's commander initiated a request for a mental status examination to be conducted by a psychiatrist, in order to request he appear before a board of officers. The findings, conclusions, and recommendation of the examining officer were to administratively separate the applicant under the provisions of Army Regulation 635-209, due to a character and behavior disorder.

The applicant struck an enlisted soldier in the face with his fist on 23 October 1961 and was convicted by a summary court-martial. He was sentenced to hard labor for 30 days and a forfeiture of pay.

The commander proceeded on 24 October 1961 with the recommendation for an administrative separation under the provisions of AR 635-208, and ordered him to appear before a board of officers to determine whether he should be separated from the service. He also elected not to submit a statement in his own behalf.

On 7 November 1961, he received a special court-martial conviction for committing an assault upon a German National, by striking him with a dangerous weapon likely to produce grievous bodily harm, a pocketknife. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.
The facts and circumstances of his administrative discharge are not present in the available records. However, his records do contain a duly constituted report of separation (DD Form 214) which shows the appropriate authority approved the recommendation for discharge on 30 November 1961, and directed that the applicant be given an undesirable discharge.
On 3 January 1962, under the provisions of Army Regulation 635-208, he received an undesirable discharge based on his involvement in frequent incidents of a discreditable nature with military and civilian authorities. He had served 1 year, 8 months, and 2 days of total active service and had 46 days of lost time due to AWOL and confinement .

The available records show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge and on 26 June 1972, it was denied.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness. Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures or disposition under other regulations was inappropriate. Unfitness included involvement in frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.

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. 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.

3. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.
 4. The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

5. The applicant's contentions have been noted by the Board. However, the evidence of record and his undistinguished record of service is not sufficiently mitigating to warrant relief.

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

___ fe ___ ___ pm __ ___ ra ___ DENY APPLICATION
                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records
INDEX
CASE ID AR2002066452
SUFFIX
RECON YYYYMMDD
DATE BOARDED 2002/05/16
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 189 110.0000
2.
3.
4.
5.
6.



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