MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 August 2002
         DOCKET NUMBER: AR2002073741

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Irene N. Wheelwright		Member
Mr. Jose A. Martinez		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.

APPLICANT STATES: That the best that he can remember is there was a personality clash with his commander. He did receive some Article 15s but they were not serious. Then his commander called him into his office and told him he could get out if he wanted out. He would receive an undesirable discharge and if he did not fight it and did not get into any trouble after he got out the Army would change his discharge to honorable in one year. As supporting evidence, he provides two documents showing his good standing in the Masons, five training certificates, and a document showing he has no charge or arrest record with the Sebastian County Sheriff Department.

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

That he enlisted in the Regular Army on 21 March 1961. He completed basic combat training and advanced individual training and was awarded military occupational specialty 111.10 (Light Weapons Infantryman). He was honorably discharged on 11 June 1963 after completing 2 years, 2 months, and 21 days of creditable active service with no lost time for the purpose of immediately reenlisting on 12 June 1963.

On 21 June 1963, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for, on the night prior to going on kitchen police, failing to inform the charge of quarters where he slept. On 7 August 1963, he accepted NJP under Article 15, UCMJ for sleeping instead of performing motor maintenance as it was his duty to do. On 23 September 1963, he accepted NJP under Article 15, UCMJ for failing to go to off-post reveille formation. On 2 November 1963, he accepted NJP under Article 15, UCMJ for losing, through neglect, a steel helmet with helmet liner.

Apparently on 27 November 1963, the applicant’s commander recommended he be separated under the provisions of Army Regulation 635-208 for unfitness. Most of the discharge packet is unavailable. (A Veterans Administration Request for Information, VA Form 3101, dated 6 April 1964 indicates the Veterans Administration (VA) was forwarded his discharge papers. Included with this action was a Determination of Eligibility for Separation, USARCEN Form 334, which indicated that the applicant was not eligible for a complete separation when discharged on 11 June 1963.)

On 9 December 1963, the applicant received a psychiatric evaluation. He was found to be mentally responsible both to distinguish right from wrong and to adhere to the right and to have sufficient mental capacity to understand board proceedings and cooperate in his own defense. It was noted that although the applicant showed many characteristics of a passive aggressive personality, such a diagnosis did not appear to be warranted at that time. It was recommended that, although he could be considered for separation under the provisions of Army Regulation 635-208, it would appear that he was unsuitable for military service because of his attitude and behavior rather than any serious discreditable acts and that he be separated under the provisions of Army Regulation 635-209.

On 13 December 1963, the applicant completed a separation physical and was found qualified for separation.

The appropriate authority approved the recommendation and directed the applicant receive an Undesirable Discharge Certificate.

On 24 December 1963, the applicant acknowledged that he received a copy of the discharge board proceedings.

An undated letter addressed to the applicant informed him that he could submit a written request to the Army Discharge Review Board (ADRB) to review the type and nature of his discharge and that he had 15 years from the date of his discharge to make his request.

On 20 January 1964, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208 for unfitness, with an undesirable discharge. He had completed a total of 2 years, 10 months, and 21 days of creditable active service with no lost time.

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 for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

Army Regulation 635-209 set forth the basic authority for the separation of enlisted personnel for unsuitability. That regulation provided, in pertinent part, that a member with a character or behavior disorder, disorder of intelligence, or transient personality disorder due to acute or special stress and was unlikely to develop sufficiently to participate in further military training and or become a satisfactory soldier, would be discharged for unsuitability.

The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically stated that no factors should be established which would require automatic change or denial of a change in discharge.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2. The applicant’s discharge packet may be filed with the VA. Without being able to review that packet, the Board is unable to determine if the applicant’s undesirable characterization of service was unjust.

3. There are no provisions to automatically upgrade a less than honorable discharge. The evidence of record shows that the applicant was informed that he had to submit a request to the ADRB, within 15 years, for a review 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

__JNS __ __INW __ __JAM __ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002073741
SUFFIX
RECON
DATE BOARDED	2002/08/15
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1964/01/20
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	A51.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.