PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 September 1999                   
	DOCKET NUMBER:   AR1999022065

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Meta Waller		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge be upgraded to general.

3.  The applicant states that he was told he would receive a general discharge.  He was discharged basically for getting married without permission.

4.  The applicant’s military records show that he enlisted in the Regular Army on 9 August 1961.  He had no record of disciplinary actions and had conduct and efficiency ratings of “excellent” up until the time he was assigned to Korea on     30 July 1962.

5.  Prior to his assignment to Korea, the applicant had completed a West Point entrance physical examination.  (There is no further evidence he applied for attendance.)

6.  Between October and December 1962, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice on three different occasions for being absent without leave (AWOL) from the company area.

7.  On 12 September 1962, the applicant was convicted by a special court-martial of leaving his appointed place of duty.  He was sentenced to be reduced to the lowest enlisted grade.

8.  On 17 December 1962, the applicant received a psychiatric evaluation.  He was found to be able to distinguish right from wrong and to adhere to the right and to be mentally capable of understanding and participating in board proceedings.

9.  On 12 January 1963, the applicant’s commander recommended he be separated under the provisions of Army Regulation 635-208 for unfitness.  In his endorsement, the group commander recommended he receive a general discharge.  

10.  On 7 February 1963, after consulting with counsel, the applicant requested his case be referred to a board of officers.  He elected not to submit a statement in his own behalf.

11.  A board was convened on 9 March 1963.  His company commander testified that most of the applicant’s AWOLs were “to see the girl or marry her.”  He also testified that he recommended him for a general discharge.  A sergeant from the 1st Cavalry Honor Guard testified that the applicant was with the Honor Guard for 3 months.  He was court-martialed while there because he left his post.  He was to stay in the guard house and clean up but he paid someone to do this for him.  That was done all of the time even without informing the Sergeant of the Guard.  He thought it was unusual the applicant got a special court-martial.  He thought it was too much of a punishment since everyone else was doing it.
12.  The board determined the applicant’s record was characterized by frequent incidents of a discreditable nature with military authorities and an established pattern of shirking and recommended his discharge for unfitness with an undesirable discharge.  On 16 April 1963, the appropriate authority approved the recommendation and directed the applicant be furnished an Undesirable Discharge Certificate.

13.  On 15 May 1963, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208 for unfitness, with an undesirable discharge.  He had completed 2 years, 5 months and 27 days of creditable active service and had 6 days of lost time. 

14.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

15.  Army Regulation 635-200 is the current regulation that sets forth the basic authority for the separation of enlisted personnel.  In pertinent part it states that a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.

CONCLUSIONS:

1.  The Board concludes that an injustice occurred in this case.

2.  The reason for the applicant’s discharge was and still is appropriate.  While the Board is empathetic with his wish to marry the woman of his choice, he was aware that Army regulations on marriage to foreign nationals were stringent at the time.  He freely chose to disregard those regulations to marry her and freely chose to go AWOL to be with her.  At the time, the separation regulation required that a soldier discharged for unfitness receive an Undesirable Discharge Certificate.

3.  However, the Board notes that the applicant’s chain of command recommended he receive a general discharge.  Under current standards the pattern of behavior should be considered in determining the character of service to be awarded.  The applicant’s military record was good enough to warrant at least some consideration for a West Point appointment and he was a member of an honor guard for several months.  For most of his time in the service his conduct and efficiency ratings had been “excellent.”

4.  Although the applicant failed to apply to this board within the time required, it would nonetheless be fair and equitable to upgrade his discharge to a general discharge in consideration of the guidelines given in Army Regulation 635-200 for determining characterization of service.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was given a general discharge from the Army on 15 May 1963.

2.  That the applicant be issued a General Discharge Certificate from the Army of the United States, dated 15 May 1963, denoting a general discharge in lieu of the undesirable discharge now held by him.

3.  That the applicant be issued a new DD Form 214 reflecting the aforementioned corrections.

BOARD VOTE:  

__fne___  __tap___  __mw____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999022065	
SUFFIX		
RECON		
DATE BOARDED	19990929	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19630515	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	A51.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.