PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 November 1999                   
	DOCKET NUMBER:   AR1999026068

	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:

	Ms. Erin J. Olmes		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. James E. Anderholm		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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

3.  The applicant states, in effect, that he believes his rights were violated.  He provides his DD Forms 214 as supporting evidence.

4.  The applicant's military records show he was inducted into the Army on        15 November 1963.  He was assigned to Company C,1st Battalion, 30th Infantry, Germany on 13 April 1964.  He was honorably discharged on 20 April 1965 for the purpose of reenlisting on 21 April 1965.

5.  Between June 1965 and February 1966, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on four occasions for such infractions as missing bed check, violating his pass, and tampering with a government vehicle.

6.  The applicant was assigned to the U. S. Army Quartermaster School from       17 June – 6 December 1966.  While there he accepted NJP under Article 15, 
UCMJ on three occasions for such infractions as failing to go to his appointed place of duty and altering a sick slip.

7.  On 17 December 1966, the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 33d Armor, Germany.

8.  On 13 July 1967, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 24 – 29 June 1967, breaking restriction, assault, and disobeying a lawful command.  He was sentenced to be reduced to Private, E-1 and to be confined at hard labor for 6 months.

9.  On 5 August 1967, the applicant’s commander initiated separation action under Army Regulation 635-212 for unfitness.  The applicant was advised of his rights by counsel.  He requested consideration of his case by a board of officers; personal appearance before such a board; elected to make a statement on his own behalf (it is not available); and requested representation by counsel.

10.  On 16 August 1967, the applicant completed a separation physical examination and was found qualified for separation.

11.  On 17 August 1967, the applicant completed a psychiatric evaluation.  He was found capable of distinguishing right from wrong and of adhering to the right and to possess sufficient mental capacity to act in his own behalf in board proceedings.

12.  On 20 September 1967, the board was convened.  The applicant did not testify in his own behalf but his counsel argued that he was with his wife for only 55 days since their marriage and he wanted leave to see his wife; that he never received an Article 15 within that battalion; that he was never given a chance for rehabilitation; and that he had an adequate record.  The board found he was unfit for military service because of habits and traits of a discreditable nature with both civil and military authorities manifested by repeated commission of offenses both petty and injurious to the need of the service and recommended he be given an undesirable discharge.

13.  On 25 September 1967, the appropriate authority approved the recommendation that the applicant be discharged for unfitness and directed issuance of an Undesirable Discharge Certificate.

14.  On 6 October 1967, the applicant was discharged, with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness.  He had completed a total of 3 years, 2 months and 17 days of creditable active service and had 247 days of lost time.  His DD Form 214 erroneously omits his service from his first enlistment and does not list his National Defense Service Medal.  His separation program number is erroneously listed as 264, character and behavior disorder.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was unlikely to succeed.

16.  On 22 February 1982, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge but corrected his separation program number to read JKA, misconduct – frequent incidents of a discreditable nature with civil or military authorities.

CONCLUSIONS:

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 was not discharged due to court-martial action.  He was administratively separated for misconduct that extended over a 2-year period and three different commands.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering his record of disciplinary actions, the characterization of his discharge as under other than honorable conditions was and still is appropriate.

3.  The Board does note two administrative errors on his DD Form 214 for the period beginning 21 April 1965.  His service from his initial enlistment is not entered in blocks 22a(2), (22)a(3) or 22b and his National Defense Service Medal is not entered in block 24.

4.  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 changing the applicant’s DD Form 214 for the period beginning      21 April 1965, block 22a(2) to read 01 05 06; block 22a(3) to read 03 02 17; block 22b to read 03 02 17; and block 24 to read National Defense Service Medal.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__ejo___  __jlp___  __jea___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Erin J. Olmes
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026068	
SUFFIX		
RECON		
DATE BOARDED	19991118	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19671006	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A64.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.