MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 September 2002
         DOCKET NUMBER: AR2002075430

         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:

Ms. Joann Langston		Chairperson
Ms. Melinda M. Darby		Member
Mr. Ronald E. Blakely		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: in his application, "At the time of my discharge I did not fully realise what the outcome of this would do to my life." He continues by saying that, "There are no errors in record," and "I did not discover until May of this year that I could submit a application to up grade my discharge."

The applicant submitted only a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, dated 12 November 1970 in support of his application.

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

The applicant enlisted on 12 August 1968, with the consent of his father, for three years with guaranteed training in Army Career Group (ACG) 62 - Engineer Heavy Equipment Operations and Maintenance. At the time of his enlistment, the applicant was just over 17 years and 7 months old.

Following completion of basic combat training at Fort Polk, Louisiana, he was reassigned for advanced individual training at Fort Leonard Wood, Missouri, in the ACG of his choice. On 3 December 1968, the applicant voluntarily waived his enlistment commitment in favor of training and assignment in the ACG 63 - General Vehicle Repairman.

The applicant was reassigned to Fort Knox, Kentucky, to undergo training in his newly selected ACG.

On 12 December 1968, the applicant was advanced in rank and pay grade to Private, E-2. This is the highest rank and pay grade that the applicant would achieve during his service.

While at Fort Knox, the applicant was administered an Article 15 under the provision of the Uniformed Code of Military Justice (UCMJ) for having absented himself from his unit, B Company, 2^nd Battalion, School Brigade, US Army Armor School on 10 January and remaining absent until 15 January 1969. His punishment consisted of forfeiture of $51 pay per month for two months; reduction to the rank and pay grade, Private E-1; and restriction to Fort Knox for 30 days.

On completion of training, he was awarded the primary military occupational specialty 63B, Wheeled Vehicle Repairman.

On 16 April 1969, he was assigned to C Company, 7^th Battalion, 6^th Infantry Regiment of the 2^nd Armored Division at Fort Hood, Texas.

---

On 4 August 1969, he was given an Article 15 under the UCMJ for willfully disobeying an order from a superior noncommissioned officer on 2 August 1969. His punishment resulted in his restriction to the company area for 14 days and extra duties for 7 days.

On 8 September 1969, the applicant departed absent without leave (AWOL) from his unit. He remained AWOL until he returned to military control at the US Army Special Processing Detachment at Fort Sill, Oklahoma, on 23 October 1969. On 7 November 1969, the applicant received a special court martial for the absence and for an additional specification of being disrespectful in language towards a superior noncommissioned officer on 3 November 1969. He was found guilty of both specifications and was sentenced to be confined at hard labor for 3 months and to forfeit $75.00 pay per month for 3 months. The sentence was adjudged on 5 December 1969 but on 9 December, so much of the sentence which provided for confinement was suspended for 3 months.

On 1 December 1969 at the Special Processing Detachment, the applicant was given an Article 15 under the UCMJ for having failed to go to his appointed place of duty. As his punishment, he forfeited $28.00 pay for 1 month.

While still at the Special Processing Detachment at Fort Sill, the applicant again absented himself from 2300 hours 11 December until about 0330 hours, 12 December 1969. He received an Article 15 on 13 December 1969 under the UCMJ for this absence and his punishment consisted of forfeiture of $20 pay, restriction to the detachment area for 14 days and 2 hours extra duty for 14 days.

On 22 December 1969, the applicant was reassigned back to Fort Hood and while he was pending assignment to a unit at Fort Hood, he again absented himself without proper authority from the 502^nd Adjutant General Replacement Company on 28 December 1969, and remained AWOL until he was apprehended by civil authorities at Broken Bow, Oklahoma, on 11 September 1970. He was returned to military control at Fort Sill on 18 September and was placed in military confinement at the post stockade pending appropriate disposition.

On 30 September 1970, a special court martial was convened. The applicant was tried for the above offense. He was found guilty and was sentenced to be confined at hard labor for 6 months and to forfeit $85.00 pay per month for
6 months. The sentence was adjudged on 6 October 1970. On 8 October 1970, only so much of the sentence that provided for confinement at hard labor for four months and forfeiture of $85.00 pay per month for four months was approved.

---

The applicant was ordered to appear before a board of officers under the provisions of Army Regulation 635-212 to determine if he should be retained or eliminated from service. The applicant’s records are void of the facts and circumstances concerning events that led to his discharge from the Army. A signed Statement of Receipt of Board Proceedings (FS Form 1147-R) signed by the applicant on 12 November 1970 is in the record. The Board noted that the applicant’s records contain a properly constituted DD Form 214 which was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumes government regularity in the discharge process. The Board is further convinced that the reason for discharge and the characterization of service were proper and equitable and that the rights of the individual were protected throughout the discharge process.

The applicant was discharged on 12 November 1970 under the provisions of Army Regulation 635-212 for Unfitness - an established pattern of shirking. His service was characterized as under other than honorable conditions and he was provided an undesirable discharge certificate, DD Form 258A. At the time of his discharge, he had 1 year, 2 months and 20 days creditable active Federal service and 376 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 635-212, 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 undesirable discharge.

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
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 applicant's service did not meet the acceptable standards of conduct and performance required of soldiers who merit an honorable discharge.

2. It is evident that command gave the applicant every opportunity to change his conduct positively. The applicant was dealt with in an extremely lenient manner in that while he was still under suspended sentence for infraction of articles under the code of military justice, he would again violate the same. He could have been severely punished through confinement had command vacated sentences that had earlier been imposed. In addition, actions to eliminate the applicant from service could have been initiated sooner than they actually were.

3. 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.
He has provided no evidence beyond a copy of his DD Form 214 which might have provided the Board a basis to grant relief.

4. 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. The applicant is not entitled to an upgrade of his undesirable discharge (under other than honorable conditions) to an honorable discharge.

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

__jhl___ __mmd___ __reb___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002075430
SUFFIX
RECON
DATE BOARDED	20020919
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19701112
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0133
3.	144.5000
4.	144.5400
5.
6.