MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 26 NOVEMBER 2002
         DOCKET NUMBER: AR2002076337

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Hubert O. Fry, Jr.		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 be upgraded to honorable or general.

APPLICANT STATES: That he received his under other than honorable conditions discharge because of a nervous condition. In 1977 he retained an attorney to submit his request to the Army Discharge Review Board. The attorney billed him for his services, but did not submit his application. The applicant submits a copy of his DD Form 214 (Report of Transfer or Discharge), and copies of three statements, all dated in 1977, attesting to his good character and conduct.

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

The applicant enlisted in the Army for three years on 29 June 1962. He completed training and in November 1962 was assigned to Fort Chaffee, Arkansas.

A 23 August 1963 report of psychiatric evaluation, indicates that the applicant was interviewed at the post stockade, and provided information concerning his personal history, indicating that around Christmas 1962 he opened another soldier’s mail, and removed the money. He turned himself into the CID (Criminal Investigation Division) and was told to make restitution. Shortly thereafter, a new commanding officer pressed charges for mail theft. A set of wedding rings were stolen and he was placed under investigation. He stole two radios, one of which he returned to the CID. Rather than face charges he went AWOL and was gone for approximately 120 days. While AWOL he lived with his wife, was eventually arrested by civilian police and turned over to military authorities. His condition was diagnosed as inadequate personality, moderate, manifested by inadaptability, ineptness, poor judgment, and social incompatibility. The examining doctor recommended that the applicant be administratively separated from the service if not separated with a punitive discharge.

A 4 September 1963 medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 2 1.

A 20 September 1963 report of psychiatric evaluation shows that the applicant’s condition was diagnosed as anxiety reaction, moderate, manifested by nervousness, insomnia, and neurotic excoriation of both hands in a Schizoid personality.

General Court-Martial Order Number 13, Headquarters, Fort Chaffee, dated 2 December 1963, shows that on 21 October 1963, the applicant was arraigned, tried, and pled guilty to stealing a letter from a fellow soldier, forging a check of a fellow soldier, stealing two radios belonging to fellow soldiers, and AWOL from on or about 5 April 1963 until on or about 4 August 1963. He was sentenced to be dishonorably discharged from the service, to forfeit fifty dollars per month for 36 months, and to be confined at hard labor for three years.

On 2 December 1963 the approving authority approved the sentence, however, reducing the forfeiture to fifty dollars per month for 12 months, and the confinement at hard labor to one year. The applicant was transferred to the Disciplinary Barracks at Fort Leavenworth, Kansas, pending completion of appellate review of his case.

A 20 December 1963 report of medical examination shows the applicant was medically qualified for general duty with a physical profile serial of 1 1 1 1 1 – (blank).

On 2 January 1964 the Board of Review determined the findings of guilty and sentence as approved correct in law and fact, but modified the applicant’s sentence to provide for a bad conduct discharge, forfeiture of fifty dollars pay month for twelve months and confinement at hard labor for one year. The Board affirmed the findings and sentence as modified.

General Court-Martial Order Number 131, Headquarters, Fort Leavenworth, Kansas, dated 13 February 1964, directed that the applicant’s sentence, as modified, be duly executed.

A 7 February 1964 admission classification summary shows that a psychiatrist diagnosed the applicant’s condition as inadequate personality, moderate, chronic, manifested by an inadequate response to emotional, economic, occupational, or social demands, ineptness, and impaired judgment. The psychiatrist made no recommendation for or against clemency, recommended that the applicant not be restored to duty, because he did not want it, but did recommend that the applicant be paroled, stating that the applicant’s prior adjustment to civilian life was apparently fairly good and it was felt that he could successfully complete a period of parole.

On 13 February 1964 a classification board convened and recommended that the applicant be paroled.

A 26 February 1964 report of medical examination shows the applicant was medically qualified for a punitive discharge with a physical profile serial of 1 1 1 1 1 2.

The applicant was discharged under other than honorable conditions on 29 February 1964.

A 15 May 1964 letter from the Office of The Provost Marshal General indicates that his parole had been disapproved, but clemency was approved and that so much of the applicant’s sentence to confinement in excess of nine months was remitted.

On 25 May 1964 orders were published by the Disciplinary Barracks at Fort Leavenworth releasing the applicant from confinement effective 29 May 1964.

On 27 May 1977 the commander of the Reserve Components Personnel and Administration Center informed a Member of Congress that the applicant’s application [to that agency] had to be returned in that he should apply to this Board for relief.

The maximum punishment authorized by the Manual for Courts-Martial (MCM) for stealing mail, forgery, larceny, and AWOL for more than 60 days is a dishonorable discharge and forfeiture of all pay and allowances for each one of those violations [of the Uniform Code of Military Justice]. The maximum authorized period of confinement varies, with 5 years the maximum authorized for stealing mail.

Army Regulation 635-200 states in pertinent part that a soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.

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. While it is true that the applicant was diagnosed in 1963 with an inadequate personality, and later with an anxiety reaction manifested by nervousness, and while it is also true that a doctor recommended that he be administratively separated, if not separated with a punitive discharge, it is also true that the applicant was physically fit for discharge as reflected in three reports of physical examination – September 1963, December 1963, and February 1964. Nevertheless, the applicant was not given a discharge under other than honorable conditions because of a nervous condition as he so states, but was discharged because of his misconduct, as evidenced by the general court-martial orders indicated above. His discharge was proper and in accordance with the law and regulations in effect at that time. His punishment was less than severe in view of the maximum punishments authorized for his crimes.

2. While the Board has taken cognizance of the applicant's good post-service conduct as reflected in the statements he submits, this factor does not warrant the relief requested.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. 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 that requirement.

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

__SAC__ __RWA__ __HOF __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076337
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021126
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.