MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 June 2000
	DOCKET NUMBER:   AR2000039376

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		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:  In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that the event which led to his discharge was an error in judgement on his part and his previous record may have clouded the judgement of others in this matter.  He states that he had borrowed an article of clothing from another service member on numerous occasions with the man’s permission and knowledge.  However, one evening he wanted to borrow the clothing again and went to see the other service member who was not at his locker.  He thought that there would be no problem borrowing the clothes again and he took the clothing out of the other members locker.  He returned to the barracks later that evening and put the clothing in his own locker.  The clothing was reported stolen by the other service member and the unit conducted an inspection which resulted in the clothing being found in his locker.  He was unable to make the point that he had only intended to borrow the clothing that night as he had many times before.  He concludes by indicating that his record spoke louder that the circumstances of the specific event.  

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

On 3 December 1958, the applicant enlisted in the Regular Army for 3 years.  He completed training at Fort Hood, Texas and was assigned to overseas duty in Germany in July 1959.  

The applicant’s Department of the Army (DA) Form 24 (Service Record), section 1, contains a record of his promotions and reductions.  The record shows that he was promoted to the rank of private/E-2 (PV2) on 3 April 1959 and to the rank of  private first class/E-3 (PFC), the highest rank he held on active duty, on 
27 August 1959.  It also indicates that he was reduced from the rank of PFC to PV2 on 15 December 1959 and from PV2 to private/E-1 (PV1) on 14 April 1960.

His service record documents no acts of valor, significant achievement, or service warranting special recognition.  It verifies that the only awards or decorations earned by the applicant were the Marksman Marksmanship Medal for the M-1 Rifle and the Expert Marksmanship Medal for the Carbine Rifle.  

The applicant’s service record does contain evidence of an extensive disciplinary history.  This includes his trial and conviction by summary court-martial on two separate occasions.  In addition, to his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on at least two separate occasions.

On 22 June 1959, the applicant was tried and convicted by summary 
court-martial for violation of Article 134 of the UCMJ for wrongfully sitting down while on sentinel duty.  His sentence included 15 days of hard labor without confinement and a forfeiture of $55.00.

On 14 November 1959, he accepted NJP for missing bed check, which resulted in his being restricted for 7 days.  On 10 December 1959 he accepted NJP for failure to prepare for an inspection, which resulted in his being reduced to the rank of PV2.

On 14 April 1960, the applicant was again tried and convicted by summary 
court-martial.  This conviction was for violation of Article 121 of the UCMJ based on his stealing a pair of civilian trousers and a sports jacket from another soldier. The resultant sentence included a reduction in rank to PV1, a forfeiture of $28.00, and confinement at hard labor for 30 days.  The confinement portion of the sentence was suspended for 30 days.  

On 19 April 1960, a psychiatric evaluation was conducted on the applicant as a result of a command referral because of his recent misconduct.  The psychiatrist conducting the evaluation diagnosed the applicant with an antisocial personality. He also indicated that the applicant’s condition was characterized by a tendency to disregard the usual rules and laws of everyday social living.  The evaluator advanced the opinion that the applicant tended to act impulsively to gain his own way regardless of the consequences to himself or to others; and that he did not learn from experience or punishment and had shown no motivation to improve.  

The psychiatric evaluation resulted in a determination that the applicant had the mental capacity to understand and cooperate in separation board proceedings against him.  Finally, the evaluating psychiatrist, while acknowledging that the final decision rested with the chain of command, recommended that the applicant be separated from the service for unfitness, under the provisions of Army Regulation 635-208, due to his frequent acts of a discreditable nature. 

On 22 April 1960, the applicant’s unit commander requested that the applicant be discharged prior to his normal expiration of term of service (ETS), under the provisions of Army Regulation 635-208, for unfitness due to frequent incidents of a discreditable nature.  He cited as his reason for taking the action the applicant’s failure to pay just debts.  He supported his action with a statement which indicated that the applicant’s misconduct included his repeated incidents of failure to repair; his failure to comply with orders; the continued sloppy appearance of both his person and his quarters; his delinquency reports; and his letters of indebtedness.  Also included in support of the separation request were statements from the applicant’s section leader and his first sergeant which attested to the applicant’s extensive history of misconduct while assigned to the unit.  
On 20 April 1960, the applicant completed a statement attesting to the fact that he had been counseled and advised of the basis for the contemplated separation action against him.  He also indicated that he had been afforded the opportunity of requesting legal counsel and did not desire to do so.  He further waived his right to have his case heard by an administrative separation board and declined to submit a statement in his own behalf.

On 12 May 1960, the appropriate authority approved the applicant’s separation and directed that he receive an UD.  Accordingly, on 20 May 1960, the applicant was discharged after completing 1 year, 5 months, and 18 days of active military service.  

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

Army Regulation 635-208, 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 were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions.

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.  The Board noted the applicant’s contention that his discharge was unfair because, in effect, it was based on a misinterpreted isolated incident.  However, after carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board concluded that this claim was unfounded.

2.  The evidence or record shows that the applicant was processed for separation based on his having been involved in frequent incidents of a discreditable nature, which was supported by his extensive disciplinary history.  

3.  The applicant’s separation processing was accomplished in accordance with applicable regulations, in effect at the time, and the character of his discharge was commensurate with his overall record of service.  Therefore, the Board concluded that relief is not warranted in this case.

4.  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 this requirement.
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

___ja___  ___ewl __  ___vbc __  DENY APPLICATION

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

INDEX

CASE ID	AR2000039376	
SUFFIX		
RECON		
DATE BOARDED	2000/06/20	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1960/05/20	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	Frequent Incidents of a Discreditable Nature	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.