MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 August 2000                  
	DOCKET NUMBER:   AR2000036487

	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.  Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		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:  Reconsideration of his earlier appeal to correct his records by upgrading his general discharge to honorable. 

APPLICANT STATES:  In effect,  that the quality of his service and his post- service behavior and accomplishments warrant the requested relief.  He submits numerous documents to show he was treated unfairly and to substantiate his post service argument.

COUNSEL CONTENDS:  In effect, counsel supports the applicant’s arguments.  Counsel observes that the applicant has done much to restore pride in our nation and flag.  Counsel requests that the Board conduct a sympathetic review and give careful consideration to the applicant’s contributions to his community and to the Nation.  Counsel points to the bicycle tour the applicant made of the 48 contiguous states and contends that he “took an active role in restoring pride in our Nation and our Flag.” 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case on 
24 January 1996 (COPY ATTACHED).

The applicant’s submissions are new evidence and argument that require board consideration.

A 20 June 1995 letter from a university professor described the applicant’s participation in a physiology experiment during his cross country bicycle ride.  The professor reports, in effect, that the applicant frequently spoke to the popular media about patriotism.

A 14 July 1995 letter from a fellow soldier relates that the applicant got into fights because of his drinking, but that he was also a sharp, professional soldier.  He was always selected as “Colonel’s Orderly” whenever he drew guard duty.  He was a terrific athlete who brought much honor to the unit and himself.  Race problems plagued the service in Germany at that time.  The applicant was blamed for an incident in which he was the victim.  He was badly beaten up by several black soldiers.  This veteran feels the applicant was not properly counseled about his drinking and fighting and that the Army should correct its mistake by upgrading the discharge.

A narrative about the applicant’s service was provided by E___ F.  R____, who identifies himself as a 7 year veteran of the Army and an Air Force officer for 11 years.  It recounts much of the same information and adds a description of the applicant’s elimination proceedings.  It concludes by stating that the elimination board of officers resulted in an injustice because the testimony in favor of the applicant outweighed that against him.  It reports that the applicant has no hard feelings toward the military. 

An Air Force major general writes that the applicant received a less than honorable discharge due to “an incident”.  He states the applicant is “one of the most patriotic, dedicated individuals I ever met, in the military or out.”   He supports the applicant’s appeal to upgrade his discharge. 

A poem memorializes the applicant’s cycling exploits which included his protest of the proposed renaming of Memorial Stadium at the University of Nebraska and credits him with promoting patriotism, respect for the flag and support for veterans.  

A local newspaper article describes the planned bicycle trip in which the applicant planned to present a flag in each state and place four flags at the Vietnam Memorial to honor the four local residents who had died in the Vietnam war.  The applicant admitted that he knew the ride would bring attention to himself but he was quoted with saying “The real heroes of this country are those who served in the armed forces.”  He planned to promote the Marine Corps because his son was serving as a Marine.

Another local newspaper article describes the end of the bicycle tour under the sub-heading “Holdredge [Nebraska] cyclist promotes patriotism, salutes U.S. vets.”

A 20 January 1998 letter from the applicant to “The Public Pulse”  speaks out against the proposal to change the name of Memorial Stadium at the University of Nebraska to Tom Osborne Stadium to honor Nebraska’s famous football coach.

Another newspaper editorial discussed the controversy over renaming the stadium. 

In a 20 October 1998 letter to Coach Tom Osborne the applicant explained that his campaign to keep the name of the stadium was really “pro-veteran” and not “anti-Tom Osborne”.

Tom Osborne, the University of Nebraska football coach, writes about the applicant’s patriotic promotions.  He concludes that the applicant was “discharged” from the Army 40 years ago after a couple of unfortunate incidents that were related to alcohol.  He has since quit using alcohol and has done many positive things with his life.”

The applicant’s mother writes that when he came home from the Army, he drank too much and got into trouble.  He was sullen and wouldn’t talk about what happened to him in the Army.  He has turned his life completely around and is a successful businessman, a good husband and father and citizen.  She hears from his Army buddy that the applicant got a bad deal in the service and thinks that the Army should correct this injustice.

A minister and former Air Force chaplain writes, in effect, that the behavior that led to the applicant’s discharge was the result of youthful immaturity coupled with inadequate leadership and lack of counseling about alcohol.  The minister thinks the Army should “let by-gones be by-gones” and upgrade the applicant’s discharge to honorable.

The applicant wrote a 23 October 1996 letter to Senator Bob Dole offering to join Dole’s presidential campaign and promote patriotism.

Two newspaper articles describe the applicant’s success as a participant in Masters Track completion.  Another reports his entry into the local business community in 1975.  Two others note his cooperation with charitable fund raising projects.  A sixth describes his defeat but strong showing in a local election.

Five certificates and photographs of five plaques honoring the applicant’s civic contributions.

A 17 March 1999 report of a medical examination notes the applicant complained of back pain originating from a 1960 beating while in the Army.

An incomplete copy of a hand printed, undated statement from the applicant relates that he was causing trouble at the enlisted men’s club when he was confronted by five guards.  A sergeant knocked out three of his teeth with a rifle butt.  He relates that “all these years I thought this happened at the gate but that witnesses told him what happened.”  He relates having to be told that five black soldiers had beaten him up.  He does not know whether these incidents occurred before or after his hearing.  His defense counsel did a poor job.    The major on the board was out to get him.  When he thinks back, he realizes that alcohol was involved with all of his problems.  He countered the new battery commander’s position that he had dishonored the battery by pointing to his success at Guard Mount, his athletic exploits, and the fact that his section had been chosen as the firing section for an inspection.  He blamed his problems on the change of the battery commander.
   
The previous MOC did not include mention of an August 1960 nonjudicial punishment for striking a fellow private first class.  The applicant’s DD Form 214 (report of separation) shows that he was separated for unfitness by repeated incidents of a discreditable nature under the provisions of Army Regulation 
635-208.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation precludes the setting of arbitrary standards, such as a certain number of trials by courts-martial, as a prerequisite to administrative elimination.  If examination by a medical officer or psychiatrist indicates the existence of a mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

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. By his own admission and the evidence of his comrade the applicant appeared before a board of officers, was represented and presented witnesses in his own behalf.  The fact that he was separated with a general discharge does not demonstrate an inequity in the process.  Rather, in light of his misconduct involving at least three assault and batteries, it demonstrates that the redeeming aspects of his service were recognized and applied.  The discharge proceedings were apparently conducted in accordance with law and regulations applicable at the time and the character of the discharge was commensurate with the applicant's overall record of military service.

2.  The applicant’s post-service accomplishments are truly remarkable but they do not outweigh the repeated egregious misconduct for which he was discharged.  This is especially so when the applicant blames his behavior on alcohol, yet he appears to have simply stopped getting drunk and assaulting people when he chose to do so.  Additionally, he blames the consequences of his behavior on the conduct of others which demonstrates that he has not accepted responsibility for this behavior.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

___tdh___  __aao__  ___gjw___  DENY APPLICATION

      Carl W. S. Chun
    Director, Army Board for Correction 
   of Military Records

INDEX

CASE ID	AR2000036487	
SUFFIX		
RECON		
DATE BOARDED	20000815	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19610109	
DISCHARGE AUTHORITY	 AR 635-208	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.		
3.		
4.		
5.		
6.