MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 16 September 2003
                  DOCKET NUMBER: AR2003088369

         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. Fred M. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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 or a general discharge.

APPLICANT STATES: That he was too young and immature to realize that the Statement of Waiver of Administrative Discharge Action (ORD Form 493) had not been properly explained to him. He states that he was instructed to sign the blank form and that it was not until two years ago that he ordered a copy of his military records and discovered that the ORD Form 493 contained his initials. He states that the initials are forged and that he had not authorized anyone to initial the form in his absence. He further states that since his discharge he has suffered through alcoholism and mental disease and that he currently receives Social Security Income benefits. He states that the mental status evaluation conducted on 14 November 1962, gives an account of his social history and it explains his thinking at the time that he entered the service. He goes on to state that due to his social history and immaturity at the time of his entry into the service, coupled with his subsequent alcohol and mental disabilities, he believes that it is an injustice to have been given an undesirable discharge. He concludes by stating that given the fact that his initials on the ORD Form 493 were forged and the fact that he was led to believe that he would be receiving a medical discharge, he requests an upgrade of his discharge. He states that had he known that he was going to receiving a discharge other than medical, he would not have consented to the discharge.

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

On 2 July 1962, he enlisted in the Army for 3 years in the pay grade of E-1. The applicant was in training at Fort Ord, California, when he was convicted by a special court-martial on 25 October 1962, of being absent without leave (AWOL) from 12 August until 1 September 1962, from 11 September until 28 September 1962 and from 7 October until 17 October 1962. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

On 14 November 1962, the applicant was referred for a mental status evaluation. The attending psychiatrist stated that the applicant contended he went AWOL the first time because of homesickness and that after turning himself in, he went AWOL a second time because he feared the consequences of his actions. The psychiatrist stated that he further contended that after turning himself in a second time he went AWOL a third time because of consequential fear. He stated that the applicant’s actions in all instances were impulsive. The psychiatrist opined that he was somewhat immature and impulsive and that his attitude toward the Army was defective; however, his intelligence was within normal limits, his




memory was unimpaired and he was able to describe his activities during his periods of absence. He further opined the applicant’s orientation and judgment were intact and that there was no evidence of anxiety, depression, or symptoms of psychosis. He was diagnosed as having no psychiatric disease and no disqualifying mental disability that would warrant separation through medical channels. The psychiatrist concluded his evaluation by stating that he was free from mental defect, disease or derangement and that he was able both to distinguish right from wrong and to adhere to the right and to cooperate in board proceedings. The psychiatrist recommended that he be separated from the Army under the provisions of Army Regulation 635-208.

The applicant was convicted by a special court-martial on 4 February 1963, of being AWOL from 14 December 1962 until 27 January 1963. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

On 28 January 1963, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-208, for unfitness, based on frequent incidents of a discreditable nature with military authorities. He acknowledged receipt of the notification indicating that he was waiving his right to appear before a board of officers and to submit a statement in his own behalf. He further indicated that he fully understood that if his recommendation for discharge were approved, the discharge authority would also determine the type of discharge to be issued; that he was voluntarily signing the notification; and that he was being furnished a copy of the notification.

The appropriate authority approved the recommendation for discharge on 8 February 1963. Accordingly, on 21 February 1963, the applicant was discharged under the provisions of Army Regulation 635-208, for unfitness, based on frequent incidents of a discreditable nature with military authorities. He had completed 1 month and 29 days of total active service and he had approximately 174 days of lost time due to AWOL and confinement. He was furnished an Undesirable Discharge Certificate.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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 hearing by a board of officers.



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 compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2. 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 regarding his youth and immaturity. However, his youth and immaturity were not the sole basis for his being furnished an undesirable discharge. During his mental status evaluation, he acknowledged that he believed that there would be consequences behind his initial AWOL and yet he continued to go AWOL. He had no desire to remain in the Army as evidenced by his disregard for military authority and his continuous AWOL incidents.

4. The Board has also noted his contentions regarding the ORD Form 493 and that he was told that he would be furnished a medical discharge. However, they are unsupported by the evidence of record. The evidence clearly shows that he acknowledged that he understood that the discharge authority would determine the type of discharge that he would receive. He has submitted no evidence to support his contentions that the ORD Form 493 was forged or that he did not fully understand what he was signing when he waived his right to appear before a board of officers and the to represented by counsel.

5. He had more time AWOL than he had creditable service and considering his numerous acts of misconduct, his undesirable discharge appropriately reflects his overall record of service.

6. 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.

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

__fe ____ __kh____ __mm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088369
SUFFIX
RECON
DATE BOARDED	2003/09/16
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1963/02/21
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	583/UNFITNESS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 592	144.5100/FREQUENT INCIDENTS
2.
3.
4.
5.
6.