MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 June 2002
         DOCKET NUMBER: AR2002070715

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Kathleen A. Newman		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)

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that his discharge was the result of his commander’s discrimination and prejudice against him and others from Texas. He goes on to state that his commander made an effort to make his life miserable until he could get rid of him. He further states that from the moment he arrived in the unit in Korea, he was harassed and punished for trivial violations that were not his fault and the commander made demeaning comments about his family. He also states that since his discharge he has been a good citizen who has been married to the same woman since 1960, has raised two children, has three grown grandchildren, and owns his home free and clear. He goes on to state that he loves his country and feels that his discharge was because of one man’s personal affliction towards him. In support of his application he submits three third party letters of support.

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

He enlisted with parental consent in Amarillo, Texas, on 29 August 1959, for a period of 3 years. He completed his basic training at Fort Hood, Texas, and was transferred to Fort Ord, California, to attend his advanced individual training (AIT) as a rifleman. He completed his AIT and was transferred to Korea on 29 January 1960.

On 7 April 1960, nonjudicial punishment (NJP) was imposed against him for missing bed check. His punishment consisted of restriction for 14 days.

On 28 April 1960, NJP was imposed against him for having unclean acouterments, arms, clothing and equipment. His punishment consisted of restriction for 14 days.

He was convicted by a summary court-martial on 13 June 1960, of disobeying a lawful order to turn his rifle in to the arms room by 1830 hours and for failure to go to his place of duty. His punishment consisted of hard labor without confinement for 30 days and a forfeiture of pay.

On 17 June 1960, the commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-208, for unfitness, due to his frequent involvement in incidents of a discreditable nature with military and civilian authorities. He cited as the basis for his recommendation, the applicant’s constant involvement in incidents that required disciplinary action and indicated that he (the applicant) was a constant source of trouble for his superiors. He went on to state that the applicant was one of several members of the unit who had organized as a group that got special delight in creating disorder and confusion within the ranks. Two thirds of the commander’s time was devoted to investigations and disciplinary matters pertaining to the applicant and his counterparts. He went on to state that the applicant had been moved four times within the company, in an attempt to help him overcome his deficiencies and he continually demonstrated that he did not want to conform to Army standards. He indicated that the applicant was a “wise guy” who would not work and when he did work, he required constant supervision and his work was unsatisfactory. The commander included statements from all of the applicant’s chain of command and all of them indicated that the applicant was a constant source of trouble and required an inordinate amount of time to take care of. He was slovenly in appearance, displayed a “care less” attitude, was resentful to all orders, and displayed no respect for his superiors.

The applicant refused to sign the acknowledgement that he had been informed of his rights in regards to the recommendation for discharge and informed his commander that he did not have to sign anything. The commander memorialized the refusal to sign in the recommendation packet and indicated that he believed that the applicant was simply being stubborn in his refusal to make his option elections or to acknowledge that he had been briefed on his rights regarding the proposed separation.

The appropriate authority (a major general) approved the recomendation for discharge on 7 July 1980 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 10 August 1960, under the provisions of Army Regulation 635-208, for unfitness, due to his involvement in frequent incidents of a discreditable nature with civil and military authorities. He had served 11 months and 12 days of total active service.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 15 February 1961. He contended at that time that he was unjustly discharged because he had been denied a board of officers to hear his case. He also contended that his commander did not like him and made every effort to have him discharged from the Army. He also asserted that he had been court-martialed twice and had received nonjudicial punishment three times. In each instance, he asserted that he had done nothing wrong, but he knew he would be wasting his time to fight the issues. The ADRB determined that he had been properly discharged and denied his application on 3 May 1961.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reasons of unfitness, for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, shirking or establishing a pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally considered appropriate. A refusal to acknowledge notification of the discharge proceedings constituted a waiver of rights under that regulation.

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 violations or procedural errors which would tend to jeopardize his rights.

3. Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

4. The applicant’s contentions and supporting documents have been noted by the Board. However, given his overall disciplinary history and record of service during a short period of time, they are not sufficiently mitigating to warrant an upgrade of his discharge.

5. 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

___kan__ __rtd____ __inw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070715
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/06/27
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1960/08/10
DISCHARGE AUTHORITY	AR635-208
DISCHARGE REASON	UNFIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/A51.00
2.
3.
4.
5.
6.