MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 April 2002
         DOCKET NUMBER: AR2002067566

         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. Margaret K. Patterson		Chairperson
Mr. Elzey J. Arledge		Member
Mr. Richard T. Dunbar		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 a general discharge.

APPLICANT STATES: He was informed that he was discharged for letters of indebtedness. He contends that he was never told he could get his discharge upgraded until 20 or 25 years after the deadline date. His application indicates that he submitted character references from friends and acquaintances in support of his application; however, these documents were not submitted with his application.

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

The applicant enlisted in the Regular Army on 14 January 1959 for a period of four years. He completed training as a medical corpsman and served in Hawaii from 5 December 1959 through 9 March 1962. He reenlisted on 29 May 1962 and served in Korea from 28 September 1962 through 16 October 1963.

The applicant underwent a psychiatric examination on 14 July 1960. The psychiatrist indicated that the applicant had no mental or physical defect sufficient to warrant discharge under the provisions of Army Regulation 635-40 or any other medical channels. The psychiatrist stated that the applicant had difficulty adjusting to the routine of military life, and did not have the personality characteristics compatible with adequate functioning in his current MOS [military occupational specialty] as a medical aidman. He further recommended that the applicant’s personality problems were not amendable to psychiatric treatment available in a military setting. In conclusion, the psychiatrist recommended that the applicant be counseled and assisted to make an adequate adjustment in his current assignment, and if it was not possible to effect a suitable change of assignment, he then recommended that the applicant be administratively separated from the military service under the provisions of Army Regulation 635-209.

On 6 June 1961, the applicant was convicted by a summary court-martial of being AWOL from 21 May 1961 to 23 May 1961. He was sentenced to hard labor without confinement for 1 month.

The applicant received nonjudicial punishment for being absent from guard duty from 2200 hours to 2330 hours on 2 October 1963. His punishment consisted of reduction from private first class/E-3 to private/E-2.

On 16 October 1964, the applicant was referred to the Mental Hygiene Consultation Service at Fort Hood, Texas, for a psychiatric evaluation at the request of his unit commander. At the time of the evaluation, the applicant was confined in the stockade for AWOL. In his evaluation, the psychiatrist indicated that the applicant initially entered the Army as an MP [Military Police], but he was transferred because he had received an Article 15 for being out of uniform. He also indicated that the applicant had received six Articles 15 while assigned to Hawaii; however, these Articles 15 are not present in the applicant’s personnel records. The applicant was diagnosed as having a passive aggressive personality and 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 recommended that the applicant be separated from the service under the provisions of Army Regulation 635-208.

On 23 October 1964, the applicant was convicted by a special court-martial of being AWOL from 2 October 1964 to 8 October 1964. He was sentenced to confinement at hard labor for 4 months, forfeiture of $75.00 pay for 4 months, and reduction to private E-1.

On 27 October 1964, the applicant was counseled and notified by his unit commander of initiation of separation action under the provisions of Army Regulation 635-208, for unfitness. The unit commander cited as the reasons for the proposed separation as the applicant’s excessive letters of indebtedness, non-militaristic attitude, habitual inappropriate appearance, and general disinterest in any of his military duties.

On 27 October 1964, 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 a statement in his own behalf. He also acknowledged that he might encounter substantial prejudice in civilian life if an undesirable discharge were issued to him.

The separation authority approved the separation on 20 November 1964 and directed that the applicant be issued an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged on 30 November 1964 under the provisions of Army Regulation 635-208, for unfitness due to an established pattern of shirking. At the time of his discharge, he had completed 2 years, 5 months and 11 days on his current enlistment and 5 years, 10 months and 22 days total active military service. He had 21 days of lost time due to AWOL and confinement.

The applicant’s personnel records contain an undated letter from the Acting Assistant Adjutant General at the Headquarters, III Corps and Fort Hood, Texas. In this letter, the applicant was informed that he could submit a request for an upgrade of his discharge to the Army Discharge Review Board in accordance with Army Regulation 15-180. The applicant signed the letter and acknowledged that he had read and fully understood the contents of the letter. However, there is no indication that the applicant applied to the Army Discharge Review Board 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. The regulation provided, in pertinent part, for the separation of personnel for an established pattern for shirking. 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 a discharge under other than honorable conditions 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. The Board noted that applicant’s contention that he was discharged for letters of indebtedness. However, records show the applicant received a summary court-martial, a special court-martial and nonjudicial punishment.

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

5. The Board also noted the applicant’s contention that he was not informed that his discharge could be upgraded until 20 or 25 years after the “deadline date”. However, records show the applicant signed a letter during his last duty assignment at Fort Hood, Texas, acknowledging that he could submit a request for an upgrade of his discharge to the Army Discharge Review Board.

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

7. 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.

8. 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

MKP____ EJA_____ RTD____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002067566
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020411
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19641130
DISCHARGE AUTHORITY	AR635-208
DISCHARGE REASON	Unfitness due to an established pattern of shirking
BOARD DECISION	(DENY)
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.