MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 October 2002
         DOCKET NUMBER: AR2002071482

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Ms. Regan K. Smith		Member
Mr. Donald P. Hupman, Jr.		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 (UD) be upgraded to a fully honorable discharge.

APPLICANT STATES: That he believes he was separated as a result of prejudice and discrimination because he voiced his opinion about racism. His commander openly displayed a "Dixie" or "Rebel Flag" in his office and the applicant often felt like he was reporting to a member of the "KKK" [Ku Klux Klan] when he had to see the commander. He believes that lots of racial prejudice still exists in the military. He hopes this Board will upgrade his discharge for his family's sake. He submits in support of his request a newspaper article from an unknown source.

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

That on 19 February 1964, he enlisted in the Regular Army with a moral waiver for disturbing the peace. He enlisted for 3 years and training in military occupational specialty (MOS) 131.00 (Armor Crewman). He completed the training requirements and he was awarded MOS 131.00. On 21 July 1964, he was assigned to Germany.

On 9 September 1964, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice, for being absent from his unit (AWOL) between 2400 hours and 0100 hours. Matters in extenuation and mitigation were submitted and considered (the matters considered are not contained in the record). His punishment included an oral reprimand and 14 days of extra duty and restriction.

The applicant was convicted by a summary court-martial (SCM). On 15 September 1964, he was convicted of breaking restriction and being AWOL from his unit between 1715 hours and 1910 hours on 13 September 1964. He was sentenced to perform hard labor without confinement for 1 month and to forfeit $57.00 pay per month for 1 month. Both the sentence to perform hard labor and the forfeiture of pay were set aside on 6 October 1964.

On 17 September 1964, the applicant's commander recommended that the applicant be barred from reenlistment. The applicant's commander stated the bases for the recommendation were his above offenses; that the applicant had expressed an intensive desire to terminate his service obligation; that he was not truthful; that he was untrustworthy and undependable; that he required constant supervision during the daily performance of his duties; that he shirked responsibility at every opportunity; and that he believed the applicant would continue to be a poor risk for the military and that both his conduct rating and his efficiency rating were unsatisfactory.


On 21 September 1964, the applicant indicated in a statement that he should not be barred from reenlistment; that he believed everyone makes mistakes once in a while; that he realized he had made mistakes; that he was paying for the mistakes that he had made; and that he believed, in the future, he would be able to overcome his mistakes and profit from them. On 24 September 1964, the applicant's bar to reenlistment was approved.

On 15 March 1965, the applicant was convicted by a SCM of disobeying a lawful order given by a noncommissioned officer on 9 March 1965. He was sentenced to perform hard labor without confinement for 30 days and to forfeit $55.00 pay per month for 1 month.

On 19 March 1965, a second NJP was imposed against the applicant for failure to go to his appointed place of duty at the prescribed time on 18 March 1965. No mitigating circumstances were submitted. His punishment included an oral reprimand and 14 days of restriction.

The applicant's records do not contain all the facts and circumstances surrounding the discharge process. However, his record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was prepared at the time of separation and authenticated by the applicant. His DD Form 214 shows that, on 10 June 1965, he was separated under the provisions of Army Regulation 635-208, for unfitness with a UD. He had completed 1 year, 3 months and 22 days of active military service. The DD Form 214 shows no lost time.

Army Regulation 635-208, in effect at the time set forth the basic authority for administrative separation for unfitness (misconduct). Action to separate an individual was to be taken when, in the judgment 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, a UD 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. 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. Although the facts and circumstances surrounding the applicant's discharge process are missing, an available DD Form 214 shows that he was separated under the provisions of Army Regulation 635-208, for unfitness as a result of unfitness. Therefore, he would have been afforded the opportunity to present his case before a board of officers. He would have consulted with defense counsel and counsel would have represented him or he would have voluntarily signed a statement indicating that he did not desire legal representation. He would have been informed of the charges against him. He would have also been informed that he could receive a UD and he would have been informed of the ramifications of receiving a UD. The Board presumes regularity in the discharge process. He has provided no information that would indicate the contrary.

3. There is nothing in the applicant’s records and he has provided nothing that shows prejudicial treatment, discrimination, or arbitrary or capricious actions by his command. Therefore, the Board concludes that the applicant has provided no evidence to establish a basis for the upgrade of his discharge.

4. 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

__clg___ __rks___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071482
SUFFIX
RECON
DATE BOARDED	20021031
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19650610
DISCHARGE AUTHORITY	AR635-208
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.