MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 December 1999  
	DOCKET NUMBER:   AR1999027338

	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. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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 general, under honorable conditions.

APPLICANT STATES:  The applicant states that he was not represented by counsel at his board of officers hearing and that he was falsely accused of being asleep on duty when he was not even assigned to the duty in question.  Further, he contends that he was treated unfairly because he is part Native American and that this situation needs to be made right at this time.

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

He enlisted in the Regular Army (RA) for a period of 3 years on 1 November 1955.  He successfully completed basic combat training at Fort Dix, New Jersey, and advanced individual training (AIT) in military occupational specialty 301.10 (AAA RC Repairman Helper) at Aberdeen Proving Ground, Maryland.  He was briefly assigned to the Philadelphia QM Depot and thereafter reassigned to Alaska on 9 August 1956.

On 30 October 1956 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failing to go to his proper place of duty.  His punishment included 14 days restriction.

On 18 January 1957 he accepted NJP for failing to comply with a standing order.  His punishment included 14 days restriction.

On 7 February 1957 he accepted NJP for failing to obey a lawful order.  His punishment included 2 hours extra duty for 14 days.

On 21 February 1957 he accepted NJP for a traffic violation.  His punishment included 14 days restriction.

On 4 April 1957 the applicant was convicted by special court-martial for disobeying a lawful order from a superior noncommissioned.  He was sentenced to confinement at hard labor for 3 months (suspended for 6 months) and forfeiture of $55 per month for 3 months.

On 16 August 1957 a board of officers considered the applicant for elimination from service.  The evidence of record indicates that the applicant was present during all open sessions of the board and chose to appear without counsel.  The Board recommended separation for repeatedly committing petty offenses not warranting trial by court-martial.

On 16 October 1957 the applicant was discharged under the provisions of AR 635-208 for unfitness and issued a DD Form 258A (Undesirable Discharge Certificate).  He was credited with 1 year, 9 months, and 2 days on his current enlistment.

Army Regulation 635-208, then in effect, provided in pertinent part, the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals discharged under this regulation normally receive a UD. 

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

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The evidence of record shows that the applicant appeared before a Board of Officers without counsel, however, the Board presumes administratively regularity in that the applicant chose to appear without counsel. 

2.  There is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  In view of the applicant’s many acts of indiscipline, it does not appear that his UD was too severe.

3.  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 failed to submit evidence that would satisfy the aforementioned requirement.

4.  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

__FKM___  __RVOC  __SK____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027338	
SUFFIX		
RECON		
DATE BOARDED	19991216	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19571016	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	5000	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 9315		
2. 9235		
3. 0100		
4. 9500		
5.		
6.