MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:           

	BOARD DATE:            5 May 1999
	DOCKET NUMBER:   AR1999018837

	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. James M. Alward		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger W. Able		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 his discharge should be upgraded because he has only maintained low paying jobs since his discharge in 1958.  He states that his wife left him in 1973, he gained custody of his two children and raised them as a single parent until his son’s death in 1981.  He contends that he is a hard-working, honest and dependable individual.  In support of his application, he submits a personal statement, four character reference letters, and three congressional letters dated 1958.

COUNSEL CONTENDS:  The American Legion, as counsel for the applicant, contends that the discharge is too harsh, the special court-martial offenses were relatively minor (failure to report to appointed place of duty, disobeying a lawful order, wearing improper uniform, and breaking restriction), and there is no indication that the applicant was AWOL for any extended periods or received any Article 15’s.  Counsel reiterated the applicant’s contentions and noted the information submitted with his application.     

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

The applicant’s DD Form 214 (Report of Transfer or Discharge) shows he enlisted on 7 March 1957 for a period of 3 years, trained as a light weapons infantryman and had 3 years of prior service.  

Information provided by the applicant indicates that he was tried by special
court-martial on 11 February 1958 for failing to report at the time prescribed to his appointed place of duty, disobeying a lawful order of a noncommissioned officer, wearing an improper uniform, and breaking restriction.  He pled not guilty to the first two offenses and guilty to the latter two.  He was found guilty of all offenses and sentenced to confinement at hard labor for 6 months and forfeiture of $60.00 pay per month for 6 months.  Upon normal administrative review by the Division Judge Advocate it was determined that the sentence was excessive.  The sentence was reduced to 45 days hard labor without confinement and forfeiture of $60.00 pay per month for 3 months.

The facts and circumstances surrounding the applicant’s discharge are not on file.  However, separation orders, dated 26 May 1958, indicate the applicant was scheduled for release from active duty not by reason of physical disability and would be discharged from the service with an undesirable discharge under the provisions of Army Regulation 635-208 on 27 May 1958.

Accordingly, on 27 May 1958, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-208, for undesirable habits and traits of character.  He had served 4 years, 1 month and 12 days of total active service with 39 days lost.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  The regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, drug addiction, pathological lying, or misconduct.  The regulation also provided that when discharged because of undesirable habits or traits of character an Undesirable Discharge Certificate will be furnished. 

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 the absence of evidence to the contrary, it must be presumed that the applicant’s separation under the provisions of Army Regulation 635-208 was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.
 
3.  The applicant’s contentions and good post-service conduct were noted by the Board.  However, the applicant failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

4.  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.

5.  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

__rwa___  ___js  ___  ___ja ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018837	
SUFFIX		
RECON		
DATE BOARDED	1999/05/05	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19580527	
DISCHARGE AUTHORITY	AR 635-208  	
DISCHARGE REASON	UNDESIRABLE HABITS OR TRAITS OF CHARACTER	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.000	
2.		
3.		
4.		
5.		
6.