MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 July 2003
         DOCKET NUMBER: AR2002085638

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Thomas D. Howard		Member
Mr. Thomas Lanyi		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 undesirable discharge be upgraded to general. He also requests that the reason and authority for separation be changed on his DD Form 214 (Report of Separation from the Armed Forces of the United States).

APPLICANT STATES: That his undesirable discharge should be changed to Army Regulation 615-365 (Convenience of the Government) or Army Regulation 615-360 (Enlisted Men, Discharge, General Provisions). He states that early in his Army career he established a pattern of being absent without leave and drinking on duty. He contends that he was summarily discharged having never matured emotionally to the point where he could adjust to military life. He states that in today's Army a young man not equipped to meet the rigors of Army discipline would either be rejected or discharged without a stigma. In support of his application, he submits a letter of explanation dated 16 November 2002.

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

The applicant enlisted on 15 September 1948 for a period of 3 years.

On 25 October 1948, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 18 October 1948 to 21 October 1948. He was sentenced to forfeit $20 pay for one month. On 25 October 1948, the convening authority approved the sentence.

On 20 November 1948, the applicant was convicted by a summary court-martial of being AWOL from 8 November 1948 to 9 November 1948. He was sentenced to forfeit $25 pay for one month. On 20 November 1948, the convening authority approved the sentence.

On 30 July 1949, the applicant was convicted by a summary court-martial of being AWOL from 6 July 1949 to 18 July 1949. He was sentenced to forfeit $50 pay, reduced to recruit and restriction for 30 days. On 9 August 1949, the convening authority approved the sentence.

On 17 September 1949, nonjudicial punishment was imposed against the applicant for stealing beer. His punishment consisted of hard labor for 3 days.

On 16 January 1950, the applicant was convicted by a special court-martial of being AWOL from 29 November 1949 to 30 December 1949. He was sentenced to perform hard labor for 3 months and to forfeit $50 for 2 months. On
31 January 1950, the convening authority approved the sentence.

On 24 January 1950, the applicant underwent a psychological evaluation. The psychologist determined that there was no evidence of physical or mental illness, that the applicant was able to distinguish right from wrong and to adhere to the right and refrain from the wrong, and the applicant was found to present evidence of a pathological personality disorder. The psychologist recommended that the applicant be referred to a board of officers convened under the provisions of Army Regulation 615-368 for determination of fitness for service.

On 8 February 1950, the applicant's unit commander recommended that he appear before a board of officers to determine whether or not he should be discharged prior to the expiration of his term of service under the provisions of Army Regulation 615-368, for unfitness. He cited that the applicant had demonstrated his unfitness to be retained in the Army by his repeated infractions of regulations (four courts-martial for AWOL).

The applicant appeared before a board of officers on 17 February 1950. The Board determined that the applicant "gives evidence of habits and traits of character which render retention in the service undesirable." The Board recommended that the applicant be discharged from the service because of unfitness and that he be furnished an undesirable discharge. On 25 February 1950, the officer exercising general court-martial jurisdiction approved the recommendation.

On 16 March 1950, the applicant underwent a separation medical examination and was found qualified for discharge.

On 17 March 1950, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 615-368 for unfitness due to habits and traits of character. He had 1 year, 4 months and 16 days of total active service with 44 days lost.

Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct. The regulation also provided that when discharged because of unfitness an undesirable discharge will be furnished.

Army Regulation 615-365, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the Government. The regulation provided, in pertinent part, for the separation of personnel for the following reasons: (1) to accept a commission or appointment (as officer or warrant officer) in any of the armed forces of the United States, and to accept appointment and entrance in any of the service academies; (2) to permit immediate reenlistment in the Regular Army for 3 years or more; (3) based upon the individual's importance to national health, safety, or interest, when specifically authorized by Headquarters, Department of the Army; (4) to permit immediate enlistment in the Regular Army at any time for 3 years or more, as authorized, of individuals currently serving in the Army of the United States who apply for and are qualified for such enlistment; (5) to permit enlisted personnel of the United States Army who, on and after 9 December 1947, extended their short-term enlistments (less than 3 years), to attend school under the Servicemen's Readjustment Act of 1944; (6) based upon an individual's claim that, prior to induction, he was denied a procedural right as provided by the Selective Service Act of 1948 and was, therefore, erroneously inducted; (7) to permit immediate reenlistment in the Regular Army for one of the authorized periods, of individuals currently serving in a 1-year AUS enlistment who have been selected for attendance at an officer-candidate school and who do not have sufficient time remaining in their 1-year enlistment to complete the prescribed course; (8) aliens residing in the United States illegally who did not conceal their true citizenship status at time of enlistment or induction; and (9) upon discovery of concealment by an individual that he has been adjudged a youthful offender. The regulation states that an individual separated under this regulation will be furnished an honorable or general discharge.

Army Regulation 615-360, in effect at the time, set forth the general provisions governing the discharge of enlisted personnel. It states, in pertinent part, that Army Regulation 615-360 applied to individuals discharged for expiration of service. This regulation also states that Army Regulation 615-368 applied to individuals discharged for unfitness (undesirable habits or traits of character).

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, it is concluded:

1. The Board reviewed the applicant's record of service which included three summary courts-martial, one special court-martial and 44 days of lost time and determined that his record was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

2. 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 discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3. The applicant failed to convince the Board through the evidence submitted that his discharge was unjust and should be upgraded.

4. The Board considered the applicant's request to change his discharge to Army Regulation 615-365 or Army Regulation 615-360. However, these regulations do not apply in the applicant's case.

5. The reason and authority for separation used in the applicant’s case is correct and was applied in accordance with the applicable regulation. The applicant has failed to show through the evidence submitted or the evidence of record that the reason and authority for separation issued to him was in error or unjust.

6. The Board considered the applicant's contention that in today's Army a young man not equipped to meet the rigors of Army discipline would either be rejected or discharged without a stigma. However, there is no evidence of record which shows the applicant was not equipped to meet the rigors of Army discipline. The applicant's psychological evaluation states there was no evidence of physical or mental illness and that the applicant was able to distinguish right from wrong and to adhere to the right and refrain from the wrong.

7. 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.

8. 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

JNS___ TDH_____ TL______ DENY APPLICATION

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

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INDEX

CASE ID	AR2002085638
SUFFIX
RECON
DATE BOARDED	20030722
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19500317
DISCHARGE AUTHORITY	AR 615-368
DISCHARGE REASON	Unfitness due to habits and traits of character
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.