MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:           

	BOARD DATE:            10 March 1999 
	DOCKET NUMBER:   AC98-12457
   AR1998012600

	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	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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:  In effect, that his discharge under other than honorable conditions be upgraded.  

APPLICANT STATES:  In effect, that his counsel did not provide a good defense on his behalf, his negative reports were presented to the Board first and there is no documentation to support the NCO’s statements.  He goes on to state that the officer was unprofessional in his demeanor, he questions his various assignments if he was not adjusting to military service and contends his assignments did not match his medical capabilities.  He further states that his sergeant did not have any evidence that he had married a German girl, his trouble with his captain was a result of personal prejudice and his military life declined after that incident.  He also contends that he should have been transferred to another unit or company but he was driven out of the service, he has a prior honorable discharge and had excellent conduct and efficiency marks in 1959.  In support of his application, he submits a letter of explanation, copies of his service records and the Report of Proceedings by Board of Officers dated 15 December 1961 with supporting documents.

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

At age 17, with parental consent, the applicant joined the Army National Guard on 25 September 1956 and was honorably discharged on 24 September 1959.  He entered active duty on 29 December 1959 for a period of 3 years.  He successfully completed basic and advanced individual training (AIT) and received excellent conduct and efficiency ratings.  Upon completion of AIT he was transferred to Germany to serve as a security guard. 

On 28 July 1961 nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a reduction to E-2.

On 31 August 1961, the applicant was convicted by summary court-martial (SCM) of disobeying a lawful order.  His punishment consisted of a forfeiture of $75.00 per month for one month.  The convening authority approved the sentence on 2 September 1961.    

On 7 September 1961 a psychiatric evaluation of the applicant revealed that he did not want an administrative separation and that his poor performance was related to his stubbornness because he could not marry his fiancee.  The psychiatrist opined that the applicant’s condition was characterized by a tendency towards impulsive and immature acts such as poor judgment and stubbornness.  He recommended that if the applicant’s duty performance failed to improve that he be administratively separated from the service under the provisions of Army Regulation (AR) 635-209, for unsuitability.  

On 11 September 1961 the applicant was notified of his pending separation under the provisions of AR 635-208 for unfitness.  After consulting with counsel, the applicant requested consideration of his case by a board of officers, representation by counsel and elected not to submit a statement in his own behalf.

On 4 November 1961 the applicant’s commander recommended that he be  discharged from the service under the provisions of AR 635-208 with an Undesirable Discharge.  He based his recommendation for separation on the applicant’s disciplinary record and pattern of shirking.  

On 13 December 1961, the applicant was again convicted by SCM of breaking restriction and possessing a false military pass with intent to deceive.  His punishment consisted of confinement at hard labor for 1 month.  The convening authority approved the sentence on 14 December 1961.    

A board of officers convened on 14 December 1961 with the applicant appearing with counsel.  The board of officers, after hearing testimony from the applicant’s chain of command, determined that the evidence of record found that the applicant was characterized by an established pattern for shirking. The board recommended that he be separated from the Army under provisions of AR     635-208 and furnished an Undesirable Discharge Certificate.

The appropriate authority approved the findings and recommendation of the Board on 5 January 1962.

Accordingly, on 19 January 1962, he was discharged under other than honorable conditions under the provisions of AR 635-208, for unfitness.  He had served 
1 year, 11 months and 26 days of total active service and had 26 days 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 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. 

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 applicant’s contentions were noted by the Board.  However, he has failed to show through the evidence submitted with his application or the evidence of record, that the actions taken in his case were in error or unjust.

4.  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

___klw __  __mw ___  __fkm __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12457/AR1999012600	
SUFFIX		
RECON		
DATE BOARDED	1999/03/10	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19620119	
DISCHARGE AUTHORITY	AR635-208  	
DISCHARGE REASON	UNFITNESS	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.  809		
3.  791		
4.  813		
5.  815		
6.