MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        


         BOARD DATE: 4 June 2002
         DOCKET NUMBER: AR2002066487

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Ms. Regan K. Smith		Member
Mr. Arthur A. Omartian		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.

APPLICANT STATES: That his discharge was too harsh. At the time of his enlistment, he was only 17 years of age and had two previous charges of
juvenile delinquency on his enlistment record. He also states that his mother gave him permission to enlist, that his discharge should be upgraded due to mitigating circumstances, and that he was immature and emotionally unstable. He was in and out of foster homes from the age of 3, left school in the
9th grade, and his ability to serve was impaired by his deprived background.
He was unable to cope with military life overseas and since his discharge he
has been a good citizen and father. He now deserves a second chance and is unable to obtain VA benefits due to his character of discharge. In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge), elimination board proceedings, and several documents from his personnel file.

COUNSEL CONTENDS: American Legion, as counsel for the applicant, states that the applicant served on active duty from 17 December 1958 to 12 July 1960, and was discharged under the provisions of Army Regulation 635-208, with his service characterized as under other than honorable conditions. Counsel also makes reference to an upgrade in the character of his discharge and points out that he came from a deprived background prior to entering the military. He states that he did not complete high school, was in foster homes from the age of
3, and has been a law abiding citizen and contributing member of his community since his discharge. He also states that there were errors and injustices that occurred in his case. Counsel further states that the Board’s attention is invited to the applicant’s DD Form 149 and attached statements and that the applicant has clearly pointed out the errors and injustices that occurred in his case. Counsel requested that the Board’s final decision reflect sound, equitable principles consistent in law, regulation, policy, and discretion.

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

At the age of 17 years, he enlisted on 17 December 1958, as a light weapons infantryman. His mental test data showed that he was in category group IV with a score of 28.

The applicant’s DD Form 789 (Unit Punishment Record) shows that the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for leaving his place of duty without permission, failure to repair, destruction of government property, and for misconduct. His punishment consisted of 14 days extra duty for each offense.



He was convicted by one summary and two special courts-martial of being AWOL from 8 to 12 July 1959 (4 days), of being disrespectful in language to his superior noncommissioned officer, and of assault. His sentences consisted of forfeitures of pay, confinement at hard labor, and reduction to the pay grade of
E-1.

On 29 April 1960, a certificate was prepared by medical authorities, which stated that the applicant was immature and was unable to adjust to overseas life. Medical authorities determined that the applicant was able to distinguish
right from wrong, possessed the mental capacity to participate in administrative or judicial proceedings, and recommended discharge under the provisions of Army Regulation 635-208.

On 29 April 1960, the applicant’s commander requested that the applicant appear before a board of officers to determine his eligibility for discharge under the provisions of Army Regulation 635-208, for unfitness. He cited as the basis for his recommendation the applicant’s three convictions by courts-martial and his record of four Article 15s, (UCMJ).

After consulting with counsel, the applicant requested a personal appearance and consideration of his case by a board of officers.

On 4 May 1960, the applicant was seen by the Group Surgeon and was given a
physical and mental evaluation. In his opinion, the applicant had no disqualifying defects sufficient to warrant disposition under the provisions of Army Regulation 635-40, or other disposition through medical channels.

The applicant appeared before a board of officers on 2 June 1960, and was represented by counsel. The applicant was present during all open sessions of the board and was afforded full opportunity to cross examine each witness and to present evidence and or witnesses in his own behalf. The board of officers recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for undesirable habits or traits of character manifested by misconduct.

The appropriate authority approved the findings and recommendations of the board of officers on 20 June 1960.

The applicant underwent a separation medical examination on 12 July 1960, and was found qualified for separation.





The applicant was discharged on 12 July 1960, under the provisions of
AR 635-208, for unfitness. He was issued an Undesirable Discharge Certificate.
He had a total of 1 year and 5 months of creditable service and had 58 days of lost time due to AWOL and confinement.

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

Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct). Action to separate an individual was to be taken when, in the judgement of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier. When separation for unfitness was warranted, an undesirable discharge was normally issued.

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 notes the applicant and counsel’s contention that as a youth he was immature and emotionally unstable and was unable to cope with military life overseas. The Board also notes that the applicant was over 18 years of age at the time of his first offense and was 19 years of age at the time he committed his last offense. Therefore, his age is not sufficiently mitigating in this case to warrant relief due to his numerous acts of indiscipline.

2. The evidence shows he received three courts-martial, four Article 15s (UCMJ), and had 58 days of lost time that are considered too serious for equitable relief to be appropriate.

3. The Board notes that the applicant is unable to obtain VA benefits due to his character of discharge. While the Board is empathetic, it does not upgrade discharges in order for applicants to obtain VA benefits.

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.

5. The type of separation directed and the reasons for that separation were appropriate considering all of the available facts of the case.

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

__jp___ __rs___ ___ao_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066487
SUFFIX
RECON
DATE BOARDED	20020604
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19600712
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 191
2.
3.
4.
5.
6.