MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:           03 March 1999                   
	DOCKET NUMBER:   AC98-11307
                                              AR1998013772

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		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 a general discharge.

APPLICANT STATES:  That he was convicted by a court-martial for fighting with a German National and was told he would be granted another hearing upon his arrival from overseas.  He states that the hearing never took place and that he was never afforded the opportunity to present his case.  He states that he applied for an upgrade of his discharge but his notice for appearance came after the hearing date.  He states that he was young and immature and it has taken a long time for him to get over this incident.

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

The applicant was 17 years old when he enlisted in the Army on 3 October 1955 for a period of 3 years and required parental consent.  He was awarded military occupational specialty 640.00 (Light Vehicle Driver).  His highest rank attained was private first class (E-3).

The applicant was assigned to Germany.  He was convicted by a summary court-martial on 19 May 1956 for disobeying an order issued by his commanding officer.  He was sentenced to forfeiture of $50.00.

He received nonjudicial punishment for being AWOL (1 January 1957 
and 13 May 1957), driving a motorcycle without a license, registration, and insurance, and for being AWOL from reveille formation on 29 May 1957 and 
2 June 1957.

The applicant was in a fight with a German National on 12 May 1957 and suffered a simple fracture of the head and metacarpal of his left hand.  A line of duty investigation was initiated and revealed that the German National started the fight and that the applicant was not present for duty and was AWOL at the time of the fight.  The line of duty investigation concluded that the applicant’s actions were not in the line of duty-not due to his own misconduct.  The line of duty investigation was reviewed and approved by the appropriate authority on 
9 July 1957.

He was convicted by a second summary court-martial on 10 June 1957 for failure to go to his appointed place of duty.  His sentence consisted of confinement at hard labor for 30 days, forfeiture of $55.00 pay and reduction to the rank of private (E-1).

On 17 June 1957 the applicant’s commander submitted a request to the appropriate authority under the provisions of Army Regulation 635-208 to have the applicant appear before a board of officers to determine whether he should be separated from the Army.  The commander stated the reasons for the board action were the applicant’s misconduct that resulted in nonjudicial punishment  and court-martial convictions, his refusal to adhere to discipline, and his unsatisfactory performance of duty.  The request was approved by the appropriate authority on 18 June 1957.

On 29 June 1957 the applicant was notified that he was to appear before a board of officers to determine whether he should be retained in the Army.  The applicant acknowledged the notification, requested counsel and indicated his desire for witnesses to testify in his behalf. 

The board of officers convened on 1 July 1957 and recommended that the applicant be separated from the Army with an undesirable discharge.  The recommendation was approved by the appropriate authority, and the applicant was discharged on 20 August 1957 with an undesirable discharge.  He had served 1 year, 9 months, and 16 days of total active service and had 33 days of lost time.

The applicant submitted a request for an upgrade of his discharge to the Army Discharge Review Board but failed to appear for his scheduled board hearing.

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.  Section II of the regulation provided, in pertinent part, for the separation of personnel for unfitness based upon frequent involvement in 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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

2.  The Board notes that the applicant’s line of duty investigation was reviewed and approved by the appropriate authority and no basis was found for another hearing on that issue.  Furthermore, the applicant’s discharge for unfitness was not based solely upon that particular incident but upon several incidents of misconduct.

3.  The Board considered the applicant’s contention that he was young and immature at the time.  However, the Board believes that even a 17-year old youth voluntarily enlisting in the Army should be able to understand what obeying orders and reporting to work means.  The applicant’s misconduct while in the Army consisted primarily of disobeying orders and not being where he was expected to be.  It appears that the fight with the German National would not have occurred, had the applicant been present for duty and not AWOL. 

4.  After considering the applicant’s youthfulness and his overall record of service, the Board finds that his good service was without distinction and does not warrant an upgrade of his discharge.  

5.  The applicant’s contention that he applied for an upgrade of his discharge but his notice for appearance came after the hearing date is insufficient to grant relief.

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

_____X___  ____X____  ____X____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11307/AR1998013772	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990303	
TYPE OF DISCHARGE	UD, 	
DATE OF DISCHARGE	1957/08/20	
DISCHARGE AUTHORITY	AR 635-208.  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	189	
2.		
3.		
4.		
5.		
6.