MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2002078041

         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. Fred N. Eichorn		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Ms. Marla J. N. Troup		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 (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: That he was drafted even though he had physical limitations; that he was informed he would never be promoted to sergeant (SGT/E-5) due to his physical limitations. He does not believe that he should be punished with a UD because of his physical limitations.

COUNSEL CONTENDS: The applicant is requesting that his UD be upgraded because it has created a hardship on him due to its severity. He believes that it is unfair for him to continue to suffer from the effects of a UD that he received more than 33 years ago.

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

He was inducted into the Army of the United States on 11 July 1968 with a moral waiver for juvenile delinquency. At his pre-induction physical examination, doctors noted that he had "ganglia - both wrists" and that his left eye exhibited symptoms of exotropia, or an outward turning eye. After a thorough evaluation, he was found to be medically qualified for induction.

Following completion of all required military training, the applicant was awarded military occupational specialty (MOS) 76A, Supply Clerk, and assigned to Okinawa, Ryukyu Islands, for duty. On 20 June 1969, while assigned to Okinawa, the applicant enlisted in the Regular Army (RA) for 6 years, in his previous MOS (76A - Supply Clerk), and in pay grade E-3.

On 26 June 1969, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ): for being absent from his appointed place of duty at the time prescribed on 22, 23 and 24 June 1969; for willfully disobeying a lawful order given by a noncommissioned officer; and for violating a general regulation by failing to sign out when leaving the company area on 25 June 1969. His punishment included 14 days of extra duty and restriction, and the forfeiture of $20.00 pay per month for 1 month.

On 22 September 1969, the applicant received NJP for being absent from his appointed place of duty from 0100-0700 hours on 16 September 1969. His punishment included 14 days of extra duty and restriction.

On 10 April 1970, the applicant was convicted by a special court-martial (SPCM) of stealing an Akai tape recorder on 20 November 1969. His sentence included the forfeiture of $25.00 pay per month for 3 months and 30 days of restriction.

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The evidence available shows that on 6 March 1970, the applicant was promoted to pay grade E-3.

On 6 July 1970, the applicant received a third NJP for being absent from his appointed place of duty from 1355-1420 hours on 1 July 1970. His punishment included the forfeiture of $15.00 pay per month for 1 month and reduction to pay grade E-2 (suspended for 18 days).

On 25 July 1970, the applicant was reassigned to Fort Sill Oklahoma.

On 7 October 1970, while assigned to Fort Sill, the applicant underwent both a medical examination and a mental status evaluation and he was determined to be qualified for separation. He was determined to be mentally responsible; able to distinguish right from wrong and adhere to the right; and to have the mental capacity to understand and participate in board proceedings.

On 8 October 1970, the applicant was convicted by a SPCM of being absent without leave (AWOL) from his unit from 1-24 September 1970. His sentence included confinement at hard labor for 50 days and reduction.

On an unknown date, a bar to reenlistment was initiated against the applicant. The applicant's commander cited the applicant's unsatisfactory conduct and efficiency ratings and the above-extended period of AWOL as the bases for the recommendation. The applicant authenticated a statement indicating that he did not desire to appeal the bar.

On 19 October 1970, the applicant's commander recommend that he be separated with a UD prior to the expiration of his term of service under the provisions of Army Regulation 635-212, due to unfitness. The commander cited as the basis for the recommendation the applicant's court-martial conviction, his chronic violation of Article 86 (AWOL), his lack of motivation towards self-improvement, and his negative attitude regarding his military responsibilities.

On the same date, the applicant authenticated a statement in which he acknowledged that he had consulted with legal counsel and that he had been advised of the bases for the contemplated action to separate him under the provisions of Army Regulation 635-212, for unfitness. He acknowledged that he understood the effects of a UD. He also waived further representation by legal counsel and a personal appearance before a board of officers. He did not submit a statement in his own behalf.

On 20 October 1970, the intermediate commander recommended approval with a UD.

On 3 November 1970, the approval authority waived further rehabilitation, approved the recommendation, and directed that the applicant be discharged under the provisions of Army Regulation 635-212, for unfitness, with a UD.

On 6 November 1970, the applicant was separated in pay grade E-1 under the provisions of Army Regulation 635-212, for unfitness, with a UD. He had completed 1 year, 2 months, and 11 day of active military service on the enlistment under review. He had also completed 1 year and 9 days of prior military service and had 66 days of lost time due to being AWOL and in confinement.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB, on 1 March 1972, denied the applicant’s request for an upgrade of his discharge

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel and provided, in pertinent part, that members involved in a frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A UD 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. 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. The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3. The quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. His service record fully supports both the reason for discharge and the characterization of his service. The applicant has provided no evidence to the contrary.

4. The applicant underwent a pre-induction physical examination that identified wrist ganglia and exotropia as non-disqualifying medical conditions.



5. The applicant underwent both a medical examination and a mental status evaluation prior to being separated and he was determined to be fully qualified for separation. There is no evidence available to indicate that he had any physical or mental limitations that contributed to his separation action or restricted his development or progression through the ranks. The applicant was separated as a result of continuous misconduct.

6. Further, the applicant was serving in the military as a result of him reenlisting and not due to being drafted.

7 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

__fne___ __hof___ __mjnt__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078041
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19701106
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.