MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 October 2002
         DOCKET NUMBER: AR2002075511

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Ms. Regan K. Smith		Member
Mr. Donald P. Hupman		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 be upgraded to honorable.

APPLICANT STATES: In effect, that he was a kid at the time and that he had feet, leg and back problems and could not do what was asked of him. He goes on to state that he was told that there was nothing wrong with him and although he wanted to serve, he simply could not. Consequently, he was kicked out of the Army. He also states that if he could undo it all and start over again, he would do it differently. However, he cannot work anymore because of his bad health and age. He further states that he believes that he has lived under the shadow of a bad discharge long enough and asks the Board to grant his request. In support of his application he submits five third party character references.

EVIDENCE OF RECORD: The applicant's military records were destroyed in the 1973 fire at the National Personnel Records center in St. Louis, Missouri, which destroyed millions of service records. However, reconstructed records show:

He was born on 26 July 1936 and enlisted in Kansas City, Missouri, on 2 June 1954, for a period of 3 years. It appears that he completed his training as a light truck driver and was transferred to Mannheim, Germany, for assignment to an Anti-Aircraft Artillery (AAA) battery.

On 10 June 1955, he was convicted by a special court-martial of being absent without leave (AWOL) on 19 May 1955. He was sentenced to confinement at hard labor for 4 months (suspended for 6 months), a forfeiture of pay, and reduction to the pay grade of E-1.

He was convicted by a summary court-martial on 12 September 1956, of being at work in need of a haircut and wearing an unclean uniform and un-shined boots. He was sentenced to perform hard labor for 14 days and a forfeiture of pay.

Nonjudicial punishment was imposed against him on 20 October 1956, for speeding in a military vehicle on 19 October 1956. His punishment consisted of extra duty.

Nonjudicial punishment was again imposed against him on 5 November 1956, for being drunk and disorderly in public on 21 October 1956. His punishment consisted of extra duty.

On 5 November 1956, the applicant’s commander initiated a request to have the applicant appear before a board of officers to determine if he should be discharged under the provisions of Army Regulation 635-208 for unfitness due to undesirable habits and traits of character. He cited as the basis for his recommendation, the applicant’s disciplinary record, his repeated unsatisfactory efforts of doing his job, poor showing of military courtesy discipline, his constant wear of dirty uniforms (including inspections), his substandard appearance, and his inability to accomplish the simplest tasks in a satisfactory manner without maximum supervision. His noncommissioned officer (NCO) chain of command also provided sworn statements that supported the applicant’s poor performance, appearance and conduct and efficiency. The applicant acknowledged his rights and elected to be represented by counsel.

On 8 November 1956, medical personnel deemed the applicant free of mental and physical disabilities. He also underwent a medical and physical examination and was cleared for separation.

He was convicted by a special court-martial on 29 November 1956, of being AWOL from 31 October to 4 November 1956 and for breaking restriction. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

The board of officers convened on 5 December 1956 and after hearing testimony and reviewing the evidence presented, found that the applicant gave evidence of habits and traits of character manifested by misconduct, that he was a habitual shirker, that he repeatedly committed petty offenses not warranting trial by court-martial and that he repeatedly committed offenses warranting trial by court-martial. The board recommended that he be discharged for undesirability based on his undesirable habits and traits of character and that he be furnished an Undesirable Discharge Certificate.

The appropriate authority approved the findings and recommendation of the board on 19 December 1956.

Accordingly, the applicant was returned to Fort Dix, New Jersey, where he was discharged under other than honorable conditions on 11 January 1957, under the provisions of Army Regulation 635-208, for undesirability, due to undesirable habits and traits of character. He had served 2 years, 3 months and 29 days of total active service and had 103 days of lost time due to AWOL and confinement.

There is no evidence in the available records that shows that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character that rendered them unfit for military service. An undesirable discharge 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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3. The applicant has failed to convince the Board through the evidence submitted with his application or the evidence of record that his discharge was unjust and should be upgraded.

4. Careful consideration has been given to the applicant’s contentions and his supporting documentations. However, they are not sufficiently mitigating to warrant relief when compared to his record of undistinguished service and disciplinary record.

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

___dh___ ___clg___ ___rks __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075511
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/31
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1957/01/11
DISCHARGE AUTHORITY	AR635-208
DISCHARGE REASON	UNDESIRABILITY
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 731	144.7900/A79.00
2.
3.
4.
5.
6.