MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 November 1999                   
	DOCKET NUMBER:   AR1999028591

	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	
	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 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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES:  That at the time of his discharge, he was 20 years old, newly married with small step-children.  When he returned home on leave he found his family living in very poor conditions with no food in the house.  He felt he could not return to base until he had helped them.  Upon returning to base, it was mutually decided by his commander and himself that it was in his best interest to leave the service and care for his family.  It was his understanding he was getting a hardship, general discharge.  He did not read any of the discharge paperwork; he simply signed where his commander indicated.  He was never advised of his right to legal representation or his right to appear (before a board). If he had read the discharge papers at the time, he would have disputed the following statements made in those documents – that he “resisted authority and regulations;” that he lacked progress; and that he had previous convictions.  In addition, he was never interviewed by a psychiatrist and he would have fully disputed his diagnosis of severe antisocial personality disorder.  He has been serving as Chief of Police in ______, __ for several years.  This fact and the supporting evidence as described in the attachment to the DD Form 149 contradict the characterizations of him in the discharge documents.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He was born on 5 May 1950.  He enlisted in the Regular Army on 3 June 1968 after approval of a waiver for civil convictions (vehicle theft and theft of money from laundromat in March 1965 and automobile theft in November 1965).  He completed basic combat training, advanced individual training and basic airborne training.

While en route to the U. S. Army Overseas Replacement Station, Oakland, CA, the applicant departed absent without leave (AWOL) from 22 November 1968 to 29 January 1969 and from 10 February to 24 November 1969.

On 25 November 1969, the applicant’s wife wrote to the President asking for assistance in getting him out on a hardship discharge because he was needed at home.  On 17 December 1969, The Adjutant General responded by providing the applicant’s wife with a checklist which outlined the policy and procedure for submitting applications for a hardship separation and informing her that he could apply even if he was pending court-martial charges or in confinement.

The applicant departed AWOL from 26 January – 7 July 1970.

On 10 July 1970, the applicant’s in-processing interview sheet indicated his wife did not have an identification card nor a Class Q (support) allotment.  

On 14 July 1970, the applicant completed a separation physical examination and was found qualified for separation.

On 14 July 1970, the available documentation shows the applicant was given a psychiatric evaluation.  He was diagnosed with anti-social personality disorder, severe.  He was found capable of distinguishing right from wrong and of adhering to the right and to have the mental capacity to understand and participate in board proceedings.

On an unknown date, the company commander initiated separation action under Army Regulation 635-212 for unfitness.  The commander stated in part “Discharge is recommended because…resistance to authority and regulations, and a pattern of behavior which renders him complete loss to the service…Extract of soldier’s record showing previous convictions is attached…”  (The extract of record shows he had no previous military convictions.)  

The available documentation, a one-page sheet, shows the applicant was advised by counsel of the basis for the action to accomplish his separation for unfitness.  He waived consideration of his case by a board of officers; waived personal appearance before such a board; elected not to make a statement on his behalf; and waived representation by counsel.  The applicant’s initials are next to each of these waiver statements.  The first paragraph of his acknowledgement states the separation was for unfitness; the last paragraph states he retained a copy of the statement.

On 5 August 1970, the appropriate authority approved the recommendation and directed the applicant be furnished an undesirable discharge.

On 10 August 1970, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness.  He had completed 9 months and 3 days of creditable active service and had 520 days of lost time.

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.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The applicant states he thought he was getting out on a hardship discharge.  However, his spouse was informed in December 1969 of the procedures to follow to request a hardship discharge.  The applicant provides no evidence that he submitted such a request.  Instead, the evidence of record shows that he departed AWOL again in January 1970.  He states he did not read any of the paperwork he signed, yet his acknowledgement of the separation action is only a one-page document.  The first paragraph states the separation was for unfitness; the last paragraph states he retained a copy of the statement.  The Board finds it difficult to understand how the applicant could not have known that his separation was for unfitness.

3.  The Board also notes that the applicant never made an attempt to provide for his newly-acquired family through normal military procedures.  He never obtained an identification card for his wife nor provided a Class Q (support) allotment for her.

4.  The Board concludes the commander used the terms “resistence (sic) to authority and regulations” to indicate the applicant’s failure to be at his appropriate place of duty (under military control) and “lack of progress” to indicate such progress he could have made in the service had he remained under military control for those 520 days.  The only references made to “previous convictions” are to indicate that he had none.  The evidence of record shows he was evaluated by a psychiatrist and he provides no evidence to the contrary.

5.  The Board is cognizant of the applicant’s good conduct and contributions to society since his discharge but these factors do not warrant upgrading his discharge.  The type of discharge given was and still is appropriate considering the length of his AWOL.

6.  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

__ejo___  __jlp___  __jea___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028591	
SUFFIX		
RECON		
DATE BOARDED	19991118	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700810	
DISCHARGE AUTHORITY	AR 635-212 	
DISCHARGE REASON	A50.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.