MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2002078823

         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. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Jose A. Martinez		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 an honorable discharge.

APPLICANT STATES: That the presumption of regularity that might normally permit this Board to assume that the service acted correctly in characterizing his service as less than honorable does not apply to his case because of the evidence he is now submitting. He states that he grew up in a typical family where, under today’s standards, both of his parents would have been considered to be alcoholics.

He states that he dropped out of high school and believing that he was an embarrassment to his family, he entered the Army at age 17 to redeem himself and to serve as a paratrooper. He further states that he started drinking while he was stationed at Fort Bragg, North Carolina, because he was afraid of failure and it got to the point that alcohol was the solution to all of his fears. He states that he would drink until he blacked out and not even be conscious of the jumps that he made while he was trying to earn his Parachutist Badge. He states that he continued to drink more and more until he would lose control; however, when he was sober he was considered to be a model soldier. He continues by stating that he was offered the assistance of a psychiatrist who suggested that he had medical problems that would have allowed him to opt for a medical discharge and he declined. He states that he had only 28 days left before his term of enlistment was over and, due to his drinking problem and immaturity, he lacked the ability to make proper judgments.

The applicant goes on to state that in 1973 he joined Alcoholics Anonymous, which was a major turning point in his life and he has been sober for the last 25 years. He states that part of his twelve-step program includes making amends for past damages that he has caused to himself as well as to others and he has successfully done so with the exception of his discharge from the military. He states that under today’s standards, he would not have received the type of discharge that he received because the reasons for his discharge were the result of his alcohol addiction. He concludes by stating that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. In support of his appeal, he submits 25 letters from business associates, acquaintances, friends and family members attesting to his good post-service conduct.

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

On 19 June 1959, he enlisted in the Army at Fort Dix, New Jersey, for 3 years in the pay grade of E-1. He was 17 years old and he enlisted in the Army with parental consent. He successfully completed his training as a mechanic’s helper.

He was promoted to the pay grade of E-2 on 19 October 1959 and to the pay grade of E-3 on 1 March 1960.

On 21 June 1960, the applicant was convicted by a summary court-martial of being drunk and disorderly in a public place and of disobeying a direct order received from his first sergeant to be restricted to the limits of the post. He was sentenced to a reduction to the pay grade of E-2 and a forfeiture of pay in the amount of $30.00.

He was convicted by a summary court-martial on 17 April 1961, of leaving his post before he was relieved. He was sentenced to confinement for 30 days, a reduction to the pay grade of E-1 and a forfeiture of pay in the amount of $50.00.

Nonjudicial punishment (NJP) was imposed against the applicant on 8 August 1961, for missing bed check. His punishment consisted of 14 days of restriction.

On 26 October 1961, he was notified that he was being recommended for a bar to reenlistment. His commander officer cited his attitude and habits that frequently required corrective or disciplinary action as a basis for the bar. The commander also cited the specific offenses that the applicant had committed. Reference was also made to the fact that he had been tried by a special court-martial for misappropriation of a government vehicle and was found not guilty due to the fact that a witness of German nationality who had previously made a positive identification of the applicant in a line up of other military personnel, refused to testify in court.

The applicant acknowledged receipt of the notification and he opted to submit a statement in his own behalf. He stated that he had always done his job to the best of his ability along with other jobs that he had been counted on to do. He stated that on inspections, he weapons were always found to be in satisfactory condition and that he had never been “giged” on the condition of his weapons by any member of his unit. He went on to state that he had been in error on three occasions; however, he was making a sincere effort to keep his conduct above reproach. He concluded by stating that he liked the Army and had thought seriously about making it his life’s work. He stated that he did not believe that he should be barred from reenlistment.

The appropriate authority approved the recommendation for his bar to reenlistment on 4 December 1961.

On 30 December 1961, the applicant was convicted by a special court-martial of being absent from his unit on 25 December 1961 and of breaking restriction. He was sentenced to confinement for 45 days, a reduction to the pay grade of E-1 and a forfeiture of pay in the amount of $60.00 per month for 3 months.

On 23 February 1962, the applicant was convicted by a special court-martial of being absent without leave (AWOL) for approximately 5 hours, being disrespectful in language to a superior noncommissioned officer (NCO), resisting being lawfully apprehended by a military policeman and being disorderly in a public place. He was sentenced to 30 days of hard labor without confinement and a forfeiture of pay in the amount of $70.00 per month for 3 months.

The applicant had NJP imposed against him again on 12 March 1962, for being AWOL for 2 hours. His punishment consisted of 14 days of extra duty.

The applicant was convicted by a special court-martial on 18 May 1962, of being AWOL from 7 May until 12 May 1962. He was sentenced to confinement at hard labor for 6 months, a reduction to the pay grade of E-1 and a forfeiture of pay in the amount of $75.00 per month for 6 months.

On 31 May 1962, the applicant underwent a mental status evaluation and was diagnosed as having an emotional instability reaction. The attending physician opined that he was mentally responsible; able to distinguish right from wrong and to adhere to the right and that he had the mental capability to understand and to participate in board proceedings. The attending physician also opined that he had no mental disease or defect sufficient to warrant disposition through medical channels. The physician recommended that he be discharged under the provisions of Army Regulation 635-209.

The facts and circumstances pertaining to the applicant's discharge are not on file. The Report of Transfer or Discharge, DD Form 214, indicates that the applicant was discharged on 23 August 1962 under the provisions of Army Regulation 635-208 for unfitness and was issued an Undesirable Discharge Certificate. He completed 2 years, 11 months and 2 days of total active service and he had approximately 84 days of lost time due to AWOL and confinement.

On 18 February 1963, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-208, then in effect, provided for the separation of personnel for unfitness. Paragraph 10b(3) provides that separation action by the commander exercising general court-martial jurisdiction prior to board action may direct discharge because of unfitness of an individual who has waived his right to be heard before a board of officers. 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. In the absence of evidence to the contrary, it must be presumed that 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. Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3. The Board has noted the applicant’s contentions. However, there is no evidence of record that shows that he was an alcoholic while he was in the Army. The evidence of record does show that he was convicted by a court-martial on five separate occasions for his acts of misconduct and considering his numerous acts of indiscipline, it does not appear that his undesirable discharge was too severe. In view of his overall record service, it is reasonable to presume that under today’s standards, he would have been discharged under other than honorable conditions.

4. The Board has also noted his good post-service conduct; however, his post-service conduct, in and of itself, is not sufficiently mitigating to warrant relief.

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

__dj ____ __jm____ ___mm __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078823
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/05/20
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19620823
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	583
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 592	144.5100
2.
3.
4.
5.
6.