MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 23 September 2003
                  DOCKET NUMBER: AR2003089227

         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:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Patrick H. McGann		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 at least a general discharge.

APPLICANT STATES: In effect, that he was young, that his judgment “wasn’t the best,” and that he did not know the consequences of the character of his discharge at the time he received it. He contends that his service was satisfactory other than the incidents that led up to his separation. He also states that he fully understands now the consequences of the character of service. He contends that he tried to enlist in the National Guard during the Vietnam War; however, because of his discharge he was not accepted. He goes on to state that he should have been given at least a general discharge because he served 6 months in the stockade and forfeited pay. In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge).

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

The applicant was born on 7 June 1941. He enlisted on 7 July 1959 for a period of 3 years. He successfully completed basic training and advanced individual training in military occupational specialty 551.10 (general warehouseman).

The applicant’s DA Form 24 (Service Record) shows that he was absent without leave (AWOL) during the periods 2 April 1960 to 10 April 1960 and 28 April 1960 to 6 July 1960.

On 5 January 1961, the applicant was convicted by a special court-martial of being AWOL from 23 July 1960 to 15 December 1960. He was sentenced to be confined at hard labor for 6 months and to forfeit $50 per month for 6 months. On 6 January 1961, the convening authority approved the sentence. On
20 March 1961, the unexecuted sentence was remitted.

The applicant’s record reflects no other disciplinary action.

The applicant underwent a psychiatric evaluation on 5 January 1961. The psychiatrist determined that the applicant was able to understand right from wrong and was capable of adhering to the right. The psychiatrist recommended that the applicant be administratively discharged under the provisions of Army Regulation 635-209 for unsuitability.

On 13 February 1961, the applicant underwent a medical examination and was cleared for administrative separation.

On 27 February 1961, the company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for unfitness and stated that elimination under Army Regulation 635-209 would not be considered appropriate due to the applicant’s frequent incidents of a discreditable nature with military authorities. He cited the applicant’s three AWOL periods and his special court-martial conviction.

On 27 February 1961, the applicant signed a statement in which he indicated that he had been counseled and advised of the basis for the recommended separation action, that he had been advised by counsel with regard to the rights available, that he waived consideration of his case by a board of officers, and elected not to submit a statement in his own behalf.

On 2 March 1961, the intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for unfitness.

On 17 March 1961, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-208, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He also directed that the applicant be furnished an undesirable discharge.

Accordingly, on 24 March 1961, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He had served 9 months and 25 days of total active service with
323 days lost due to AWOL and confinement.

On 3 November 1982, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to honorable.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities. An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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. 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.

2. The Board considered the applicant’s contention that he was young at the time of his offenses. However, the Board notes that the applicant was almost
19 years old when he commenced his first period of AWOL.

3. The Board considered the applicant’s contention that his judgment “wasn’t the best” at the time of his offenses. However, the applicant's psychiatric evaluation stated he was able to understand right from wrong and was capable of adhering to the right.

4. The Board considered the applicant’s contention that his service was satisfactory other than the incidents that led up to his separation. However, the Board reviewed the applicant’s brief record of service which included one special court-martial conviction and 323 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The Board also determined that his service was not satisfactory. Therefore, the applicant is not entitled to an honorable discharge or a general discharge.

5. 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.

6. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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

JLP____ AAO____ PHM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089227
SUFFIX
RECON
DATE BOARDED	20030923
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19610324
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	Unfitness due to frequent incidents of a discreditable nature with civil or military authorities
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.