MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           23 February 2000                   
	DOCKET NUMBER:  AR1999024272

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Mr. Raymond J. Wagner		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 (UD) be upgraded to a fully honorable discharge.

APPLICANT STATES:  That prior to his UD, he had two honorable periods of service.  He was confined only once and he does not believe that his actions justify a UD.  He submits a copy of his NA Form 13038 (United States of America Certification of Military Service).

EVIDENCE OF RECORD:  The applicant’s military records were partially burned in the 1973 Personnel Records Center fire.  The records that are available to the Board show that he successfully completed two prior honorable periods of service in the Regular Army (RA) from 7 October 1953-10 December 1953 and from 11 December 1953-26 April 1956.  The DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period 
11 December-1953-26 April 1956 is not a matter of record.  There is one recorded incident of misconduct during this period of enlistment.

On 27 April 1956, he reenlisted in the RA for a period of 6 years.  He served in military occupational specialty (MOS) 522.10 (Plumber), MOS 640.00 (Light Vehicle Driver), and in MOS 642.10 (Heavy Vehicle Driver).  The highest grade he achieved was pay grade E-3.

On 28 November 1956, while assigned in Korea, the applicant was convicted 
by a summary court-martial of using a military vehicle to transport civilian personnel for other than official or authorized purposes and of negligently damaging a military vehicle by driving it into a rice-cleaning factory on 
28 September 1956.  His sentence included reduction to pay grade E-1, 
confinement at hard labor for 5 months and $100.00 forfeiture of pay per month for 5 months. 

The sentence was approved, however, that portion of the sentence adjudging confinement at hard labor for 5 months was suspended.  On 21 March 1957, the unexecuted portion of the suspended sentence was remitted.  The reason for this action is not a matter of record.

On 30 July 1957, the applicant was reduced from pay grade E-3 to pay 
grade E-1.  On 23 December he was again advanced to pay grade E-3.  On 
20 October 1958, he was reduced from pay grade E-3 to pay grade E-2.  Both reductions were due to receiving nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for misconduct.  The NJP proceedings are not a matter of record.

On 15 November 1958, the applicant was convicted by a summary court-martial of being absent without leave from 18-20 October 1958 and from 
1-10 November 1958.  He was sentenced to confinement at hard labor for 
1 month at the stockade, Fort Sheridan, Illinois, reduction from pay grade E-2 to pay grade E-1 and forfeiture of $71.00 pay per month for 1 month.

On 25 November 1958, the applicant underwent a mental status evaluation.  He was diagnosed to be free from mental defect or derangement.  He was able to distinguish right from wrong, and to adhere to the right.  He was diagnosed to also be able to participate in his own defense.  Further, he was diagnosed to have some type of character disorder that did not fit into any one of the diagnostic categories.  The recommendation was that he be returned to duty.

On 3 December 1958, an additional psychiatric report showed the applicant had a lack of ability to assume responsibility and he demonstrated a lack of moral value.  Further, the diagnosis revealed that he had an antisocial or amoral personality.  The recommendation was that he be separated from the service administratively since it was unlikely that he would become a satisfactory soldier. “The medical and sanity statements on the previous report was unchanged. “  

On 4 December 1958, while confined at the Fort Sheridan Stockade, the applicant was notified to appear before a board of officers on 5 December 1958.  The board of officers would determine whether he should be discharged prior to the expiration of his term of service as a result of his undesirable habits and traits of character.  

On 4 December 1958, he acknowledged notification.  He waived the right of
3 days advance notification.  He also stated in writing that he did not desire representation by counsel.

On 5 December 1958, the applicant appeared before the board without counsel.  He was advised of the specific evidence and allegations against him.  He was given an opportunity to present evidence in his own behalf, to testify in person, or to present a written statement.  The available evidence does not show that he addressed the board.

On 5 December 1958, the board of officers, after a carefully considering the evidence of record, concluded that the applicant had undesirable habits and traits of character.  The board recommended that the applicant be separated from the service under the provisions of Army Regulation 635-208, for undesirable habits and traits of character with a UD. 

On 9 December 1958, the approving authority approved the Boards procedures and directed discharge with a UD.  

On 10 December 1958, the applicant was discharged under the provisions of Army Regulation 635-208 by reason of for undesirable habits and traits of character with a UD.  He had completed 2 years, 7 months and 13 days on the enlistment under review and he had completed 2 years, 6 months, and 20 days of prior active military service.  He also had 35 days lost time due to being AWOL and in confinement.

Evidence of record indicates that the applicant applied to the Army Discharge 
Review Board in 1999, which was past that board’s 15-year statute of limitation.

Army Regulation 635-208, in effect at the time set forth the basic policy, and guidance for the prompt elimination of enlisted personnel.  The regulation provided, in pertinent part, for the separation of individuals determined to have undesirable habits and traits of character demonstrated through antisocial, or amoral behavior, or misconduct.  A UD was 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.  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.

2.  The applicant’s discharge process was administratively correct and it was in conformance with the applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.

3.  The Board concluded that the applicant’s discharge appropriately characterizes his substandard record of service and the misconduct for which he was separated.

4.  Further, the Board concluded that his substandard record of service was not outweighed by prior service of sufficient merit to warrant an upgrade of the discharge being reviewed. 

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

__rvo___  ___eb___  ____rjw__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999024272	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19581210	
DISCHARGE AUTHORITY	AR635-208	
DISCHARGE REASON	A79.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7900	
2.		
3.		
4.		
5.		
6.