MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002074694

         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. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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 an honorable discharge (HD) or a general discharge (GD) under honorable conditions.

APPLICANT STATES: That he believes his UD should be upgraded because he was illegally separated. In accordance with paragraph 94 of the Manual for Courts-Martial (MCM), dated 1951, a specification and charge must contain the words "without proper authority" to allege an offense. The sentence that he received under the provisions of Special Court-Marital Order Number 29, adjudged 1 March 1968, should be set aside because the specification does not contain the words "without proper authority" and did not allege an offense. He submits in support of his request DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 March 1964 and 6 May 1968; Special Court-Martial (SPCM) Order 15, Headquarters, Fort Lewis, Washington, dated 1 August 1966; SPCM Order Number 29, Headquarters, Direct Support Group, Fort Devens, Massachusetts, dated 8 March 1968; and a letter dated 20 April 2002.

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

Prior to the period of enlistment under review on 30 August 1962, the applicant enlisted in the Regular Army (RA) with a moral waiver as a result of being a juvenile delinquent. He served until he was honorably separated on 2 March 1964. The applicant was issued a DD Form 214 at the completion of this period of service.

On 3 March 1964, while assigned to Fort Carson, Colorado, the applicant reenlisted in the RA for 6 years in pay grade E-3. On 8 April 1964, the applicant was assigned to Korea. On 12 June 1964, he was promoted to pay grade E-4. On 9 September 1964, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to observe curfew. As punishment, he received 14 days' extra duty. On 14 November 1964, he was found with a Korean woman while on guard duty. He then stole a submachine gun and an unspecified number of rounds of ammunition and left his unit absent without leave (AWOL). On 15 November 1964, military police located him in a Korean village where he shot himself in the head with a .45 caliber pistol when faced with apprehension. On 27 November 1965, a Line of Duty Investigation determined that his self-induced gunshot wound was not in the line of duty.

On 27 November 1964, the applicant underwent a psychiatric evaluation at the US Army 21st Evacuation Hospital as a result of the above injury. The examining psychiatrist determined that the applicant suffered from emotional instability that existed prior to enlistment; that he had no physical or mental defect warranting medical separation and that his condition was not amenable to medical or psychiatric treatment in the military setting or to unusual disciplinary punishment. The applicant was determined to be able to distinguish right from wrong and to adhere to the right and he was able to understand the nature of, and participate in, board proceedings. The examining psychiatrist also stated that, while the final decision rested with the applicant's chain of command, it was his recommendation that the applicant be separated from the service under the provisions of Army Regulation 635-200 due to a character and behavior disorder. On 16 December 1964, the applicant was medically evacuated from Korea and he was assigned to the United States Naval Hospital, Chelsea, Massachusetts.

On 17 March 1965, the applicant was assigned to Company C, 1st Battalion, 32nd Armor, Fort Lewis. On 14 October 1965, he was further assigned to Troop C, 1st Squadron, 10th Cavalry, Fort Lewis. On 16 October 1965, the applicant signed into the unit, but never reported to the unit for duty. The unit carried him in an AWOL status from 18 October-3 December 1965.

On 23 December 1965, the applicant was convicted by a SPCM of the period of AWOL from 18 October-3 December 1965. He was sentenced to serve in confinement at hard labor for 3 months, reduction from pay grade E-4 to pay grade E-1, and forfeiture of $50.00 pay per month for 3 months. On 20 January 1966, the unexecuted portion of the sentence to confinement was suspended for 2 months; the unexecuted portion of the forfeitures was remitted on 8 March 1966.

NJP was imposed against the applicant on four separate occasions. On 4 February 1966, NJP was imposed against him for failure to repair for reveille formation on 1 February 1966. His punishment included extra duty and restriction. On 10 March 1966, the applicant was promoted to pay grade E-2. On 31 March 1966, he was promoted to pay grade E-3.

On 14 May 1966, NJP was imposed against him for failure to go to his appointed place of duty at the time prescribed and for failure to obey a lawful order to prepare for a wall locker inspection on 13 May 1966. On 3 June 1966, NJP was imposed against him for operating a passenger vehicle in a negligent manner by losing control of the vehicle and causing it to overturn on 7 May 1966. On 9 September 1966, NJP was imposed against him for failure to obey a lawful order. His punishments included forfeiture of pay, extra duty and restriction, and reduction from pay grade E-3 to pay grade E-2.

On 31 May 1966, a bar to reenlistment was initiated against the applicant. The applicant's commander stated that he was a substandard soldier and he cited the above NJP's and the court-martial action as the bases for his recommendation.

SPCM Order Number 26, Headquarters, 1st Battalion, 22nd Infantry, Fort Lewis, dated 19 July 1966, indicates the applicant was convicted of being AWOL from his unit from 10-19 June 1966. SPCM Order Number 15, provided by the applicant, shows that, on 1 August 1966, the appropriate authority determined that the specifications and charges promulgated in SPCM Order Number 26, dated 19 July 1966, did not allege an offense, because it did not contain the words "without proper authority." Therefore, the findings of guilty and the sentence to confinement was set aside. On 21 July 1966, the applicant was assigned to Vietnam.

On 24 December 1966, the applicant was transferred to the Medical Holding Detachment, 249th General Hospital, Japan, for reasons that are not clearly shown in the available records. On 15 January 1967, he returned to the United States and on 29 January 1967, he was assigned to the United States Naval Hospital, Chelsea, Massachusetts.

On 17 March 1967, the applicant was assigned to Fort Devens. On 19 May 1967, he was promoted from pay grade E-3 to pay grade E-4. He was AWOL from his unit from 8-29 January 1968.

An Army Discharge Review Board (ADRB) Case Report, shows that Military Police Report # 273-68-5 at Fort Devens, indicates that on 29 January 1968, the applicant was escorted from his home to the civilian police department where a warrant was issued for his arrest by state police for seven counts of larceny under $100.00 and one count of larceny over $100.00. An investigation revealed that the applicant obtained a credit card that belonged to a civilian and he was charged with larceny for purchasing gasoline on four occasions; a thermostat; anti-freeze and transmission fluid; and a power steering part. Each purchase was under $100.00. He was also charged with one count of larceny for purchasing four tires that were valued over $100.00.

SPCM Order Number 29, Headquarters, 46th Direct Support Group, Fort Devens, adjudged on 1 March 1968, that the applicant contends is in error includes two specifications/charges. Specification 1 shows that he was charged with stealing a .30 caliber M-1 carbine, property of the US Government, valued at $90.00 on 9 October 1968. Specification 1 does not contain the phrase "without proper authority." Specification 2 contains the phrase and indicates that he was charged with being AWOL from his unit from 8-29 January 1968. He plead guilty to both charges and he was found guilty and convicted of both charges and sentenced to confinement at hard labor for 29 days and reduction from pay grade E-4 to pay grade E-1. The phrase "without proper authority" is a required element of an absence without leave specification; however, it is not true of a larceny specification, therefore, the larceny specification is proper.

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 6 May 1968, he was separated
under the provisions of Army Regulation 635-212, for unfitness with a UD. He had completed a total of 3 years, 8 months and 24 days of active military service and 1 year, 6 months and 3 days of prior active military service. He had 162 days of lost time due to being AWOL and in confinement for the period under review.

In 1972, the ADRB denied the applicant’s request for an upgrade of his discharge. However, the applicant was issued a DD Form 215 (Correction to DD Form 214) and Item 15 (Reenlistment Code) was corrected to show "RE-3" and Item 30 (Remarks) was corrected to show that "Table 2-5 AR 601-210 Applies."

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel and provided, in pertinent part, that members involved in a frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A UD was normally considered appropriate.

The MCM explains what conduct is in violation of the UCMJ, sets forth rules of evidence, contains a list of maximum punishments for each offense, and establishes the types of courts-martial. It states, in pertinent part, that for a violation of the offense of AWOL, the specification must state that the absence was "without proper authority." That phrase is not required for a specification of the offense of larceny.

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 635-212, for unfitness. The Board presumes regularity in the discharge process and the applicant has provided no information that would indicate the contrary.




3. Contrary to the applicant's belief [that every specification of every charge in the MCM must contain the phrase "without proper authority"], there is no error or injustice relative to his larceny conviction on 1 March 1968. Therefore, the Board will take no action concerning the 1 March 1968, SPCM conviction.

4. Further, the possible setting aside of the 1 March 1968 SPCM conviction does not establish a basis for the upgrade of his discharge. The applicant's record shows that he continuously engaged in numerous acts of misconduct and he was discharged as a result of all of these actions. He has provided no evidence to substantiate or mitigate his actions.

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

__fne___ __jea___ __cc____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074694
SUFFIX
RECON
DATE BOARDED	20021203
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19680506
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.