MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002073349

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		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)

---

APPLICANT REQUESTS: In effect, that his rank be changed to sergeant/E-5 and that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that there were mitigating factors for the misconduct that resulted in his receiving an UD. He claims that his wife had been injured in an automobile accident, and as a result he requested a hardship discharge. He claims that his separation document (DD Form 214) shows his character of service as under other than honorable conditions (UOTHC). However, he contends that judicial actions were taken against him while he was on active duty, and his service record should support his receiving an HD. He further claims that he had no knowledge that he was receiving an UD, and did not find out until much later when he was applying for benefits administered by the Department of Veterans Affairs (DVA).

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

On 8 September 1967, he was inducted into the Army of the United States for two years. He successfully completed basic training at Fort Benning, Georgia, and advanced individual training (AIT) at Fort Polk, Louisiana. Upon completion of AIT, he was awarded military occupational specialty (MOS) 36K (Wireman) and he was assigned to Fort Rucker, Alabama, for his first permanent duty station.

The applicant’s record confirms that the highest rank he held while serving on active duty was private first class/E-3, which he attained on 19 February 1968. It also shows that he was reduced to private/E-2 on 27 June 1968, and to private/E-1 in conjunction with his separation.

The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions. In addition, to his being convicted of being absent without leave (AWOL) by a summary court-martial.

The record shows that the applicant accepted NJP on the following four dates for the offenses indicated: 15 May 1968, for absenting himself from his place of duty on or about 11 May 1968; 7 June 1968, for being AWOL from reveille and extra duty on or about 4 June 1968; and 22 June 1968, for failing to go to his appointed place of duty at the time prescribed on or about 18 June 1968.

---

On 26 June 1968, the applicant was found guilty of being AWOL for 3 days, from 8 through 10 June 1968, by a summary court-martial. His sentence included a reduction to private/E-2 and a forfeiture of $33.00 per month for one month. The portion of the sentence pertaining to reduction was suspended for 60 days.

On 2 July 1968, the suspended portion of the sentence pertaining to reduction was vacated by Summary Court Martial Order Number 12, issued by the
53^rd Aviation Battalion, Fort Rucker, Alabama, and the applicant was reduced accordingly.

On 8 August 1968, the applicant was notified by his unit commander that he was being recommended for discharge under the provisions of Army Regulation
635-212, by reason of unfitness.

On 20 August 1968, the applicant consulted legal counsel and was advised of the basis of the contemplated action to separate him for unfitness. Subsequent to counseling, the applicant completed his election of rights by waiving consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel. He also elected not to submit a statement of rebuttal in his own behalf.

On 5 September 1968, the applicant’s unit commander submitted the final recommendation that the applicant be discharged for unfitness. His recommendation was primarily based on the applicant’s frequent incidents of a disrespectful nature with military authorities. This recommendation documented the extensive counseling the applicant received from various members of the chain of command.

On 30 September 1968, the appropriate authority approved the applicant’s discharge for unfitness, and directed he receive an UD. As a result of the authority and reason for discharge, the applicant was also automatically reduced to the lowest enlisted rank. On 3 October 1968, the applicant was discharged accordingly.

The separation document (DD Form 214) issued to and authenticated by the applicant with his signature on the date of his separation confirms that he held the rank of private/E-1 at that time. This document also verifies that at the time of his discharge, he had completed a total of 1 year and 26 days of creditable active military service.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An UD 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 Board notes the applicants contentions that he did not know he was receiving the type of discharge he did and that at the time, he was attempting to be discharged for hardship based on his wife’s injuries, and that his record of service justified an honorable discharge. However, it finds no evidence to support these claims. In addition, there is no evidence of record showing that he ever applied for a hardship discharge; and even if he had, the Board finds this factor is not sufficiently mitigating to warrant the requested relief.

2. The evidence of record shows the applicant was separated for unfitness and reduced to the lowest enlisted grade based on an extensive history of misconduct. This misconduct included offenses that resulted in his receiving NJP on four separate occasions, and in his conviction by a summary
court-martial.

3. The Board also notes that the applicant was notified of the contemplated separation action by his unit commander, consulted legal counsel, and was advised of the basis for the contemplated separation action and of its possible effects. In addition, subsequent to this counseling, he elected to he waived his right to a hearing before a board of officers.

4. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, it finds that the character of the applicant’s discharge accurately reflects his overall record of service. Therefore, the Board concludes that the requested relief is not warranted in this case.

5. 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.

---

6. 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

___LLS__ __PM___ __DPH__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002073349
SUFFIX
RECON
DATE BOARDED	2002/08/06
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1968/10/03
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.