MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 March 2003
         DOCKET NUMBER: AR2002077010

         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. Luther L. Santiful		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		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: The applicant requests that his undesirable discharge (UD) be upgraded to a fully honorable discharge.

APPLICANT STATES: In essence, that he believes the characterization of his service is harsh considering the circumstances. He did not realize the seriousness and the consequences of receiving the type of discharge that he received. It was during the Vietnam War era and he was only 18 years of age. He believes he would have made better choices had he enlisted at a more mature age.

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

That prior to the period of enlistment under review he enlisted in the United States Army Reserve and he served honorably in an active duty status from
27 November 1962-26 May 1963.

At age 18, the applicant enlisted in the Regular Army (RA) with a moral waiver after being involved in car theft and two disorderly conduct offenses. It was during his last disorderly conduct offense that it was stipulated that the offense would be remitted if he joined the Army.

On 30 September 1963, he enlisted RA for 3 years and his previous military occupational specialty (MOS) 760.00 (Supply Clerk) and in pay grade E-2. He was assigned to Fort Sam Houston, Texas for duty.

On 14 November 1963, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from his unit from 4-8 November 1963. His punishment included the forfeiture of $5.00 pay and to perform extra duty for 30 days.

The applicant was also AWOL from his unit from 30 December 1963-26 April 1964. On 7 January 1964, while the applicant was in an AWOL status civil authorities in Danville, Illinois arrested him and charged him with arson and burglary. He was held in civil confinement until his trial. On 27 April 1964, the applicant was convicted by civil court of petty theft and sentenced to 2 years probation. The applicant was ordered to obey the state of Illinois curfew laws, to refrain from the use of alcoholic beverages, and to make full restitution to the Whistle Stop Grocery Store. The applicant was returned to his unit at Fort Sam Houston.

On 28 April 1964, the applicant acknowledged in a written statement that in connection with his civil conviction he had been advised of the provisions of Army Regulation 635-206. The applicant annotated and signed the statement to show that he did not intend to appeal his conviction.
The applicant left his unit again in an AWOL status from 13 May-14 June 1964, he was returned to military control at the Special Processing Detachment Fort Sheridan, Illinois. The applicant remained in military confinement from
15 June-20 August 1964.

On 30 June 1964, the applicant was convicted by a special court-martial of
being AWOL from 30 December 1963-26 April 1964 and from 13 May-14 June 1964. He was sentenced reduction from pay grade E-2 to pay grade E-1, to be confined at hard labor for 6 months and to forfeit $57.00 pay per month for 6 months. On 21 August 1964, the unexecuted portion of the sentence to confinement was suspended for 45 days.

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 24 August 1964, he was separated under the provisions of Army Regulation 635-208, for unfitness with a UD. He had completed 4 months and 15 days of active military service on the enlistment under review. The DD Form 214 shows no lost time, however he has approximately 224 days lost time due to being AWOL and in military and civil confinement.

Special Order Number 178, from Headquarters, Fort Sheridan, Illinois, dated
24 August 1964 supports that the applicant was separated on the same date with a UD, due to unfitness.

Army Regulation 635-208, in effect at the time set forth the basic authority for administrative separation for unfitness (misconduct). 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. When separation for unfitness was warranted, a UD was normally issued.

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, both orders and an available DD Form 214 shows that he was separated under the provisions of Army Regulation 635-208, as a result of unfitness. Therefore, he would have been afforded the opportunity to present his case before a board of officers. He would have consulted with defense counsel and counsel would have represented him or he would have voluntarily signed a statement indicating that he did not desire legal representation. He would have been informed of the charges against him. He would have also been informed that he could receive a UD and he would have been informed of the ramifications of receiving a UD. The Board presumes regularity in the discharge process. He has provided no information that would indicate the contrary.

3. The Board has taken into consideration the applicant’s contention that he was young; however, at 18 years of age, he met entrance qualification standards, to include age. The Board found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed their military service obligation.

4. The Board also concluded that the characterization of his service was no harsher than other soldiers that were separated under the same or similar circumstances.

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

__lls___ __cjp___ __kwl___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077010
SUFFIX
RECON
DATE BOARDED	20030320
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19940824
DISCHARGE AUTHORITY	AR635-208
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.