MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 April 2002
         DOCKET NUMBER: AR2002066705

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. George D. Paxson		Member
Mr. Charles Gainor		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 an honorable discharge.

APPLICANT STATES: The applicant did not submit any issues in support of his request. However, he provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.

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

The applicant enlisted in the Regular Army on 6 September 1968 for a period of 2 years. He completed basic combat training at Fort Polk, Louisiana and was assigned to Fort Eustis, Virginia, for advanced individual training (AIT). While in AIT, the applicant received nonjudicial punishment for failing to go to his appointed place of duty. After successful completion of AIT, the applicant was assigned to Korea as a helicopter repairman.

The applicant received nonjudicial punishment on 17 June 1969 for refusing to obey a lawful order; for failing to go to his appointed place of duty; and for being AWOL from 15 to 16 June 1969.

On 8 August 1969, the applicant received nonjudicial punishment again for failing to go to his appointed place of duty; for possessing an unauthorized document; and for being incapacitated for the performance of his duties.

The applicant underwent a psychiatric evaluation on 10 September 1969. The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. The psychiatrist indicated that the applicant had no mental or physical defect and cleared the applicant for any administrative action deemed appropriate by the command.

On 28 October 1969, the applicant was convicted by a summary court-martial of resisting lawful arrest; assaulting a noncommissioned officer (NCO); breaking restriction; and wrongfully possessing an unauthorized pass. He was sentenced to confinement at hard labor for 30 days, forfeiture of $50.00 pay per month for 1 month, and reduction to private E-1.

The applicant received nonjudicial punishment again on 24 December 1969 for being AWOL from 21 to 22 December 1969.

On 16 February 1970, the applicant was convicted by a summary court-martial of wrongfully possessing an Armed Forces Liberty Pass; assaulting an unknown GI; leaving the unit motor pool without authority; being AWOL from 24 to 25 January 1970, 27 to 28 January 1970 and from 2 to 4 February 1970; and failing to go to his appointed place of duty. He was sentenced to confinement at hard labor for 1 month and forfeiture of $50.00 pay per month for 1 month.

The applicant was convicted by a third summary court-martial on 2 June 1970 of being AWOL from 16 to 24 May 1970; from 25 to 26 May 1970; from
27 to 28 May 1970; and from 28 to 29 May 1970. He was sentenced to confinement at hard labor for 25 days and forfeiture of $85.00.

On 14 April 1970, the applicant was notified by his unit commander of initiation of separation action under the provisions of Army Regulation 635-212, for unfitness.

On 15 April 1970, the applicant acknowledged the notification of separation action for unfitness, waived his right to a hearing before an administrative separation board, waived legal counsel, and did not submit statements in his own behalf. He also acknowledged that, as the result of issuance of an undesirable discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might encounter substantial prejudice in civilian life if an undesirable discharge were issued to him.

On 29 April 1970, the unit commander recommended discharge for unfitness with issuance of a General Discharge Certificate. The group commander also recommended approval with issuance of a General Discharge Certificate.

On 15 May 1970, the support commander returned the separation action to the commanding officer for corrections and guidance. The new unit commander recommended approval with issuance of an Undesirable Discharge Certificate on 25 May 1970.

On 15 June 1970, the separation authority approved the discharge under the provisions of Army Regulation 635-212, for unfitness and directed that the applicant be issued an Undesirable Discharge Certificate. The separation authority directed that item 11c (Reason and Authority) of the applicant’s DD Form 214 be prepared to show the entry “AR635-212, SPN 384.”

The applicant was discharged on 25 June 1970 under the provisions of Army Regulation 635-212, for unfitness. At the time of his discharge, he had completed 1 year, 7 months and 15 days of creditable service with 65 days of lost time due to AWOL and confinement.

The applicant applied to the Army Discharge Review Board (ADRB) on 18 February 1981 for an upgrade of his discharge to honorable or general. On 26 January 1982, the ADRB determined that the applicant’s discharge was proper and equitable and voted to deny the applicant’s request for an upgrade of his discharge. However, the ADRB directed that the applicant’s DD Form 214 be amended to show he was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 33b(2) for misconduct - an established pattern for shirking. As a result, the applicant was issued a DD Form 215 (Correction to DD Form 214), dated 4 March 1982, which amended item 11c (Separation and Authority) to show the entry “PARA 14-33b(2) AR 635-200, SPD JKJ.” The DD Form 215 also amended item 30 (Remarks) to show the entry “MISCONDUCT – AN ESTABLISHED PATTERN FOR SHIRKING.”

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(3) of the regulation provided, in pertinent part, that members involved in drug addiction, habituation, or the unauthorized use, sale, possession, or transfer of any narcotics, marijuana, hypnotics, sedatives, depressants, stimulants, hallucinogens, or other known harmful or habit forming drugs were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2. The applicant was advised of the effects of an undesirable discharge and that he might be deprived of many or all Army and VA benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

3. Records show the applicant received three summary court-martials and four nonjudicial punishments.

4. In view of the applicant’s acts of indiscipline, it does not appear that his undesirable discharge was too severe.

5. Based on the foregoing, there is no basis for granting an upgrade in this 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

JL______ GDP_____ CG______ DENY APPLICATION

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

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INDEX

CASE ID	A2002066705
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020425
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19700625
DISCHARGE AUTHORITY	AR 635-200,chapter 14
DISCHARGE REASON	Misconduct – An Established Pattern of Shirking
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.