MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002073879

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		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, in effect, that his discharge, under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES, in his application, "for the past 30 years I have lived as an honorable citizen in my country and have seen my errors in my young days in the service and regret my mistakes. I want to be as proud of my country as I want them to be of me and I am a good citizen in standing and would like my discharge to be honorable. I love my country and am sorry for the way of my discharge and want to rectify it any way I can."

The applicant adds, in a self-authored letter, in effect, that he would like to have his discharge reinstated [upgraded] so that he can join the American Legion and be able to live a better life without this [his discharge under other than honorable conditions] in his past. He adds, that at the time of his discharge, he was "a young and foolish kid" and at the time, he could not see that; but, as time has gone by, he has seen that what he did was a lot worse than he ever thought. He never meant to disrespect his country in any way and he thinks very highly of his country. The applicant feels that if his country can give immunity to those of other countries then he should also be forgiven and his discharge changed to honorable

The applicant submitted a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, with an effective date of 31 January 1964; and two letters of support from friends, one of which is his pastor. Both letters, which were solicited for submission with his application, are complimentary of his integrity, loyalty and generosity.

COUNSEL CONTENDS: Counsel for the applicant, The American Legion, provided no statement in extenuation or mitigation. It chose to remain silent pertaining to the applicant's request.

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

The applicant enlisted, with parental consent, on 29 April 1961, his 17^th birthday, for three years. To be able to enlist, the applicant applied for and was given approval of a waiver for disqualifying factors since he had been adjudged a juvenile offender and was on probation.

Following completion of Basic Combat Training at Fort Benning, Georgia, he completed Advanced Individual Training, also at Fort Benning. He was awarded the primary military occupational specialty (PMOS) 631.10 Wheeled Vehicle Mechanic.

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On 24 October 1961, he was assigned to the 93^rd Engineer Company,
168^th Engineer Battalion (Combat), in Germany as a first duty station.
The applicant's DA Form 24, Service Record, reveals that he was promoted to Private, Pay Grade E-2, on 29 August 1961.

On 8 November 1961, the applicant was given a summary court martial for having absented himself without proper authority from the motor pool to avoid a field exercise on 30 October 1961 and for having absented himself from his unit, the 93^rd Engineer Company on 31 October 1961. He was sentenced to perform hard labor, without confinement, for 45 days, to forfeit $50.00 pay for one month and to be reduced to the rank and pay grade of Private, E-1.

He regained his promotion to Private, pay grade E-2, on 3 January 1962 and was promoted to Private First Class, pay grade E-3, on 11 June 1962. Private First Class was the highest rank and grade that the applicant held while on active duty.

On 10 September 1962, nonjudicial punishment was imposed against the applicant for being absent from his unit without authority from 2030 hours, until 2140 hours on 9 September 1962 and for having been disorderly at the Nellingen Barracks Security Police Gate and in the Orderly Room of the 93^rd Engineer Company on the same date. His punishment consisted of his reduction in rank and pay grade to Private, E-2.

On 11 January 1963, he was reassigned to C Company, 82^nd Engineer Battalion, also located in the Federal Republic of Germany.

On 15 February 1963, nonjudicial punishment was imposed against the applicant for being absent from his unit without authority from 0001 hours until 0430 hours on the same date. His punishment consisted of extra duty for seven days.

On 20 February 1963, nonjudicial punishment was imposed against the applicant for being absent without leave from 17 February until 19 February 1963. His punishment consisted of a forfeiture of seven days pay.

On 25 March 1963, the applicant was referred for a psychiatric evaluation. During this evaluation, it was determined that there was no psychiatric impediment to whatever action command deemed appropriate. The applicant was found to have a passive aggressive reaction characterized by ambivalence toward authority and expressing resultant hostility by passively aggressive

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actions or inaction. The examining psychiatrist opined that the condition existed prior to service and that further rehabilitative efforts would probably not be effective.

On 24 April 1963, the applicant was given a summary court martial for being disrespectful in language toward his superior noncommissioned officer on
16 April 1963. He was sentenced to perform hard labor, without confinement, for 30 days and to forfeit $50.00 pay for one month. So much of the sentence, to perform hard labor, without confinement, for 30-days, was suspended for three months, unless sooner vacated.

On 21 May 1963, nonjudicial punishment was imposed against the applicant for being absent from his place of duty from 0100 hours until 0230 on 19 May 1963. His punishment consisted of a forfeiture of seven days pay ($20.00) and seven days extra duty.

On 7 June 1963, the applicant was given a summary court martial for being absent without leave from 0100 hours until 0230 hours on 23 May. He was sentenced to perform hard labor, without confinement, for 30 days and to forfeit $40.00 pay for one month. So much of the sentence, to perform hard labor, without confinement, for 30-days, was suspended for three months, unless sooner vacated.

On 22 July 1963, the applicant was given a summary court martial for having gone from his appointed place of duty without authority on 30 June 1963, for having absented himself from his unit on 7 July 1963 and for having disobeyed a lawful order from his superior noncommissioned officer on 21 June 1963. He was sentenced to be confined at hard labor for 30 days and to forfeit $70.00 pay for one month.

On 9 October 1963, the applicant was given a summary court martial for being absent from his unit from 0001 hours until about 0330 on 10 September 1963 and for being absent from his unit from 0001 until about 0330 hours on 12 September 1963. He was sentenced to be confined at hard labor for 30 days and to forfeit $70.00 pay for one month.

On 14 October 1963, the applicant was ordered to appear before a board of officers to be convened on 30 October 1963 to determine if he should be discharged from the service under the provisions of Army Regulation 635-208. The board was convened and adjourned on 15 November 1963. After having considered all the evidence, the board recommended that the applicant be discharged from the service with an undesirable discharge.



While he was awaiting approval of the results of the board, the applicant's apparent disregard for military discipline continued. On 21 November 1963, the applicant was given a summary court martial for being absent without leave from 0100 hours until about 1100 hours on 17 November 1963. He was sentenced to confinement at hard labor for 30 days and to forfeit $70.00 pay for one month.

On 2 January 1964, the applicant was given a summary court martial for being absent without leave from 0100 on 29 December 1963 until about 0200 hours on 2 January 1964. He was sentenced to confinement at hard labor for 30 days and to forfeit $70.00 pay for one month.

The chain of command recommended approval of the elimination board's findings, and the approving authority, a Lieutenant General, directed, on
4 January 1964, that the applicant be discharged from the service because of unfitness under the provisions of Army Regulation 635-208, paragraph 10b(3), and that an undesirable discharge certificate be furnished. Accordingly, he was returned to the continental United States for discharge.

The applicant was discharged on 31 January 1964 under the provisions of Army Regulation 635-208, paragraph 10b(3). His service was characterized as under other than honorable conditions and he was provided an undesirable discharge certificate. At the time of his discharge, he had 2 years, 6 months and 2 days creditable active Federal service and 93 days lost due to absence without leave and confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 635-208, then in effect, provided in pertinent part, the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service. 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. Individuals discharged under this regulation normally receive a UD.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance

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of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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 noted the applicant’s letter and other complimentary letters of support which the applicant submitted with his application; however, these letters do not provide the Board a basis upon which to grant relief.

2. The applicant provided no evidence that his age or level of maturity impaired his ability to be a good soldier or that he was any less mature than other soldiers of the same age who successfully served their country.

3. The Board noted that the applicant met entrance qualification standards to include age. The Board also noted that the applicant was given parental consent to enlist and was given a waiver of what would normally have been a disqualifying factor - being on probation. The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

4. The applicant has not alleged error or injustice in the discharge process. The Board is satisfied that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5. Finally, the Board considered the applicant’s entire record of service. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. Through his misconduct, even after he had been before a board of officer to determine whether he should remain in or be eliminated from the service, the applicant continued his disruptive behavior and further diminished the quality of his service below that meriting a fully honorable or general discharge. The applicant is not entitled to an upgrade of his under other than honorable conditions discharge to an honorable discharge.

6. In view of the foregoing, there is no basis for granting the applicant's request.

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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___ __dph___ __wdp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073879
SUFFIX
RECON
DATE BOARDED	20020912
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19640131
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	A51.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0133
3.
4.
5.
6.