MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 9 September 2003
                  DOCKET NUMBER: AR2003086066

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas A. Pagan		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 honorable.

APPLICANT STATES: In effect, that his discharge should be upgraded because he was accepted under lowered enlistment standards and he was diagnosed with an immature personality, passive aggressive type – chronic.

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

He enlisted In Salt Lake City, Utah on 1 April 1969, for a period of 2 years, under the provisions of Army Regulation 601-210 and the Deputy Chief of Staff for Personnel (DCSPER) letter dated 28 June 1968, titled "Lowered Enlistment Standards, which allowed for the enlistment of personnel whose Armed Forces Qualification Test (AFQT) placed them in category IV. The applicant was a category IV enlistee.

He was transferred to Fort Ord, California to undergo his basic combat training (BCT). He successfully completed his BCT and received excellent conduct and efficiency ratings. He remained at Fort Ord to undergo the first phase of his advanced individual training (AIT) as a field wireman.

On 23 July 1969, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty (kitchen police). His punishment consisted of a forfeiture of pay, extra duty and restriction for 14 days.

On 28 July 1969, NJP was imposed against him for breaking restriction. His punishment consisted of a forfeiture of pay, extra duty and restriction for 21 days.

On 11 August 1969, he was assigned to Fort Gordon, Georgia, to undergo additional training as a lineman.

His records show that he went absent without leave (AWOL) from 2 September to 30 September 1969 and 10 October to 14 October 1969. However, the record is silent as to any punishment imposed.

He again went AWOL on 22 October 1969 and while he was AWOL, he was arrested for second degree burglary and grand larceny in Salt Lake City. He was given 5 months confinement by civil authorities on 4 May 1970; however, the judge gave him credit for time served and directed that he be remanded to military authorities. He was returned to military control on 5 May 1970, when charges were preferred against him.

On 21 May 1970, he was convicted by a special court-martial of being AWOL from 22 October 1969 to 5 May 1970. He was sentenced to confinement at hard labor for 3 months and reduction to the pay grade of E-1. However, the convening authority suspended 2 months of his confinement for a period of 6 months, unless sooner vacated.

On 12 November 1970, the applicant underwent a mental status evaluation and was diagnosed as having an immature personality, passive aggressive type, chronic, severe.

On 1 December 1970, NJP was imposed against him for being AWOL from 2 November to 5 November and 12 November to 24 November 1970. His punishment consisted of a forfeiture of pay, extra duty.

The applicant again went AWOL on 4 December and remained absent until 15 December 1970. NJP was imposed against him for the AWOL offense and his punishment consisted of a forfeiture of pay.

On 16 December 1970, the suspended portion of his sentence to confinement at hard labor was vacated and the applicant was placed in confinement at Fort Lewis, Washington.

On 5 February 1971, the applicant's commander notified him that he was recommending that he be discharged from the service for unfitness under the provisions of Army Regulation 635-212, due to an established pattern of shirking in the form of being AWOL.

After consulting with counsel, the applicant waived his rights and declined to submit a statement in his own behalf.

On 24 February 1971, the appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 7 April 1971, under the provisions of Army Regulation 635-212, for unfitness due to an established pattern of shirking. He had served 10 months and 2 days of total active service during which time he had completed his training and had 430 days of lost time due to AWOL and confinement.

On 30 June 1975, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a general discharge. At the time of his application he was incarcerated and was requesting an upgrade in order to qualify for educational benefits from the Veterans Administration (VA). On 5 December 1975, the ADRB determined that his discharge was proper and denied his appeal.

He again applied to the ADRB contending that his discharge was inequitable because he had marginal potential to succeed in the military due to his AFQT category, a poor upbringing, immaturity, his being diagnosed with a personality disorder and because his ability to serve was impaired by drugs and alcohol. He was granted a personal appearance before the ADRB Travel Panel in Seattle, Washington, on 15 March 1983 and was represented by counsel. The applicant did not appear in person because he was incarcerated for second degree burglary. His counsel presented his case in his behalf. After hearing testimony and reviewing the evidence of record, the ADRB again determined that the applicant was properly discharged and that there was insufficient mitigation to warrant an upgrade of his discharge. The ADRB denied his application on 1 April 1983.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provided, in pertinent part, that members who established a pattern of shirking or who were involved in frequent incidents of a discreditable nature with civil and/or military authorities, were subject to separation for unfitness. 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. The applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2. Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his otherwise undistinguished record of service during such a short period of time.

3. The Board has noted the applicant's contentions and finds them to be without merit. The applicant demonstrated his ability to successfully serve under the established enlistment standards by successfully completing his training. Additionally, the lowered enlistment standards were not lowered just for the applicant, but for many others in the same category who managed to serve their country successfully and honorably without engaging in misconduct. Accordingly, there appears no basis to warrant an upgrade of his discharge.

4. 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.

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

___wtm _ ___tap __ ___slp __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086066
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/09
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/04/07
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	UNFIT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 583	144.5000/A51.00
2.
3.
4.
5.
6.