MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            28 January 1999
	DOCKET NUMBER:   AC98-13073
                                              AR1998012285

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

	The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		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)

APPLICANT REQUESTS:  That his undesirable discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that segregation was in place in 1952 and black soldiers were not receiving rank and morale was low.  That records were destroyed that reflect good soldiers who sacrificed greatly for their country and he was misled as a young soldier as to the consequences of not challenging his discharge.  He further states that he had less than 180 days of lost time and his misconduct was minor and more accurately reflects the struggle of a black soldier in overcoming the barriers of racism.  He goes on to state that other than minor acts of misconduct, his service was otherwise honest, faithful, and meritorious and he should not be further punished for his inadequacies in a system that had no place for him.  He also states that he has worked civil service at Fort Bragg, North Carolina and numerous other jobs and has been a model citizen.

EVIDENCE OF RECORD:  The applicant's military records were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri which destroyed approximately 18 million records.  However, information obtained from the Department of Veterans Affairs show:

The applicant enlisted in Columbia, South Carolina on 1 October 1953 for a period of 3 years.  He successfully completed his training and was assigned to the 92d Engineer Battalion at Fort Bragg, North Carolina for duty as a construction helper.

On 27 August 1954 he was convicted by a special court-martial of stealing a clock.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  After serving 107 days in confinement, the convening authority suspended the unserved portion of the confinement for a period of 3 months, unless sooner vacated.

On 3 June 1955 he was convicted by a summary court-martial of dereliction of duty while posted as a sentinel.  He was sentenced to a forfeiture of pay.

On 24 April 1956 he was convicted by a summary court-martial for breaking restriction.  He was sentenced to perform hard labor for 1 month and a forfeiture of pay.

During the period 7 April 1956 to 5 September 1956 nonjudicial punishment (NJP) was imposed against the applicant on at least five separate occasions for failure to maintain his uniform, breaking restriction, dereliction of duty, sleeping on duty, and failure to repair.

For reasons not explained in the available records, the applicant was placed in confinement on 27 September 1956.  On 13 November 1956 the applicant’s commander initiated action to require the applicant to appear before a board of officers to determine whether the applicant should be discharged under the provisions of Army Regulation 635-208 for misconduct based on undesirable habits and traits of character.  At that time the commander indicated that the applicant was serving a sentence in the post stockade.  

In support of his recommendation the commander provided statements from numerous members of the chain of command which indicated that from the very beginning of his assignment to the unit, the applicant was constantly trying to dodge work, would sleep on the job, and would disappear when the opportunity presented itself.  They also indicated that he was transferred to different platoons and jobs and that he had trouble getting out of bed, going to formations, that he was undependable, that he had a lax attitude, and that he had failed to respond to numerous counseling sessions. 

After being notified that he was being considered for separation the applicant requested representation by counsel.

The applicant appeared before a board of officers on 26 November 1956 represented by counsel.  After hearing testimony from the chain of command describing the applicant’s misconduct and unsatisfactory performance, the applicant’s counsel requested the that board consider the facts of the case and to allow the applicant to serve out his enlistment.

The board determined that the applicant displayed habits and traits of character that rendered his retention in the service as undesirable because he displayed the habits of a habitual shirker and was continuously charged with misconduct.  The board recommended that he be discharged from the service under the provisions of Army Regulation 635-208 and that he be issued an Undesirable Discharge Certificate.  The appropriate authority approved the findings and recommendations of the board.

Accordingly, the applicant was discharged under other than honorable conditions on 10 December 1958 under the provisions of Army Regulation 635-208 based on habits and traits of character that rendered him unfit for further service.  He had served 2 years, 8 months, and 14 days of total active service and 179 days of lost time due to confinement.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character that render then unfit for military service.  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 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 of the facts of the case.

3.  The applicant has failed to convince the Board through the evidence submitted with his application or the evidence of record that his discharge was unjust and should be upgraded.

4.  Careful consideration has been given to the applicant’s contentions.  However, his record of undistinguished service and disciplinary record does not warrant further relief.

5.  The Board is aware of the problems that black soldiers experienced during the period of segregation; however, the applicant has submitted no evidence to support his claims of racial bias in his case.  In fact, the Board reviews many cases of this nature and the available evidence suggest that any soldier, regardless of race, would have received the same type of discharge for similar conduct.

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 the aforementioned 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

__rwg___  __ls ____  ___clg___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-13073/AR1998012285	
SUFFIX		
RECON	 	
DATE BOARDED	1999/01/28	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1958/12/10	
DISCHARGE AUTHORITY	AR635-208 	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  144.5000		
2.  144.9315		
3. 		
4.		
5.		
6.