MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 31 JULY 2003
         DOCKET NUMBER: AR2003086761

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Gail J. Wire		Chairperson
Ms. Karen A. Heinz		Member
Mr. Robert L. Duecaster		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: That he has been a good citizen since his discharge, and he feels that his discharge should be upgraded.

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

Documents available to the Board indicate that the applicant's original petition to the Board, for physical disability retirement, was considered and denied on 16 February 1972. On 12 November 1975 the Board considered and denied his request to upgrade his discharge. The Board proceedings, however, are not available in either case. Additionally, in response to his 6 May 1982 request to this Board, he was informed on 8 September 1982 that his case had received repeated reviews which failed to show evidence of error or injustice which would warrant correction of his records, and consequently there was no basis to support changing the decision previously rendered. Because the original Board proceedings are unavailable, this Board has accepted the current application and elected to do a "De Novo" review in order to provide the applicant with a clear understanding why his discharge has not been upgraded.

The applicant enlisted in the Army for three years on 20 July 1959, completed training, and in December 1959 was assigned to Fort Bragg, North Carolina as an assistant rocket launcher gunner.

He was AWOL from 25 March 1960 to 5 April 1960. On 12 April 1960 before a summary court-martial, the applicant was arraigned, tried, and pled guilty to the charge of AWOL.

The applicant was AWOL from 2 June 1960 to 4 June 1960. On 16 June 1960 before a summary court-martial, the applicant was arraigned, tried, and pled guilty to the charge of AWOL.

In June 1960 the applicant, along with his unit, was transferred to Okinawa.

On 16 August 1960 before a special court-martial, the applicant was arraigned, tried, and pled guilty to theft and breaking restriction. He was sentenced to be confined at hard labor for six months and to forfeit $55.00 per month for six months. The sentence was approved by the convening authority. The applicant was confined for 44 days.

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A 15 September 1960 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that he furnished for the examination, the applicant stated that his health was good.

A 16 September 1960 certificate from the Neuropsychiatric Services in Okinawa indicates that the applicant was evaluated on 25 June, 18 July, 25 July, and 13 September 1960, at the request of the applicant's commander, prior to contemplated administrative board proceedings. That certificate indicates that the unit commander stated that the applicant had been completely negative in his actions and in response to his duties during the past 90 days, and that prior to that, his adjustment was borderline. He had been given numerous separate jobs in the platoon under different NCOs to no avail. He has been counseled on several occasions with no satisfactory results. His attitude toward the military was negative in every respect. The certificate indicates that the applicant expressed the wish to be with his mother, who had heart trouble. There was no motivation to adjust to the military, as he was too concerned about his obligation to his mother. The examining physician diagnosed the applicant's condition as emotional instability reaction, chronic, moderate. He stated that the applicant had the mental capacity to know the difference between right and wrong, and should be able to adhere to the right. He was considered to be mentally responsible for his acts. He had no mental or physical defect which warranted a physical evaluation board or disposition through medical channels.

The discharge proceedings are not available; however, on 26 September 1960 the applicant was informed that he was being issued an undesirable discharge from the Army.

The applicant was discharged on 26 September 1960 at Oakland, California, under other than honorable conditions, under the provisions of Army Regulation 635-208.

On 12 September 1974, the Army Discharge Review Board informed the applicant that his request for a change in the type and nature of his discharge had been denied.

On 20 March 1981 the Army Discharge Review Board again denied his request to upgrade his discharge.

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Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness. Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable. Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking. An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

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 is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. There is nothing in the available records or in anything submitted by the applicant to overcome that presumption. The character of the discharge is commensurate with his overall record.

2. The evidence indicates, in addition to his discreditable acts resulting in three courts-martial, the applicant had been given several jobs and had been counseled regarding his performance of duties, to no avail. He was given every opportunity to adjust his behavior and conduct and to improve his performance of duty. That he did not do so, suggests irresponsibility on his part.

3. The Board has taken cognizance of the applicant's contention of good post-service conduct; however, this does not warrant the relief requested. In view of the applicant's acts of indiscipline and misconduct, it does not appear that his undesirable discharge was too severe.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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 that requirement.

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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

__GJW__ ___KAH _ __RLD __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086761
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030731
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.	110.00
2.
3.
4.
5.
6.