MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE:
         DOCKET NUMBER: AR2002077412

         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
Mrs. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Powers		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 general under honorable conditions.

APPLICANT STATES: That he has paid his debt to society and that his discharge should at least be general. In support of his application, the applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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

The applicant enlisted on 30 October 1958 for a period of 3 years. He successfully completed basic and advanced individual training. He served as a scout driver and a duty soldier until his separation.

On 31 March 1960, the applicant was convicted by a summary court-martial of without proper authority and failure to go at the time prescribed to his appointed place of duty on or about 25 March 1960. He was sentenced to perform hard labor without confinement for 30 days, forfeiture of $50.00 and to be reduced to the grade of recruit E-1.

On 24 October 1960, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) on 18 October 1960. He was sentenced to perform hard labor for 30 days, forfeiture of $50.00 and reduction to the grade of recruit E-1.

On 28 November 1960, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) on 3 November 1960. He was sentenced to perform hard labor for 30 days and forfeiture of $60.00 for one month.

A bar to reenlistment was imposed against the applicant on 1 February 1960 for four nonjudicial punishments which included the following offenses; two instances of violation of pass policy, missing bed check and AWOL. The bar to reenlistment also states that the applicant consistently neglected to maintain proper standards of appearance and conduct after repeated counseling.

On 8 August 1961, the applicant was convicted by summary court-martial of being absent without leave (AWOL) from 6 August 1961 to 8 August 1961. He was sentenced to confinement at hard labor for 30 days, forfeiture of $70.00 for one month and reduction to the grade of recruit E-1.

On 5 October 1961, the applicant was convicted by special court-martial of stealing a Sharp transistor radio of some value less than $20.00 on or about
21 August 1961. He was sentenced to perform hard labor for 6 months and forfeiture of $70.00 for six months.

The applicant underwent psychiatric evaluation and medical examination and was cleared for administrative separation.

Headquarters Fort George G. Meade, Special Order Number 38 administratively separated the applicant on 21 February 1962, under the provisions of Army regulation 635-206 for conviction by civil court. At the time of his separation, the applicant was "absent in the hands of civil authorities Maryland House of Correction in Jessup, Maryland."

The applicant's DD Form 214 shows that he completed 2 years eleven months and 7 days with 135 days lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel. Paragraph 37 of the regulation provided, in pertinent part, the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the US or its territorial possessions. An undesirable discharge was normally considered appropriate.

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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board noted the applicant's contention that he has "paid his debt to society." However, good post service conduct alone is not a basis for upgrading a discharge.

2. The Board reviewed the applicant's record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.

3. The Board reviewed the applicant's record of service which included several nonjudicial punishments, four summary court-martial convictions, one special court-martial conviction and 135 days lost. As a result the Board determined that his record of service was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

4. 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. The type of discharge and reason for separation were appropriate considering all the facts of the case.

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 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

__LLS___ _BJE____ ____WDP DENY APPLICATION

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

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INDEX

CASE ID	AR2002077412
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021217
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.
2.
3.
4.
5.
6.