MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            24 October 2000
	DOCKET NUMBER:   AR2000041890

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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 an Honorable Discharge.

APPLICANT STATES:  In effect, that the offenses for which he was administered nonjudicial punishment (NJP) were minor in nature; that there were mitigating circumstances for the offenses for which he was convicted by a special court-martial; that his commander was determined to separate him and fabricated some of the evidence against him, while embellishing other evidence.  In essence, he adds that:  the evidence of record does not support the reason for discharge; that he received inadequate counsel; that he was not given the opportunity to have a hearing, or present witnesses, or respond to allegations; that his offenses were isolated/minor in nature; that he came from a deprived background; that he had personal problems; that he was the victim of racial discrimination; that the reason for his discharge was inequitable.

In support of his application, he submits:  a 21-page statement; a copy of the reverse side of his DD Form 47, Record of Induction; a copy of a 15 March 1966 Acknowledgment of Service Obligation; copies of pages 1 and 3 of his DA Form 20, Enlisted Qualification Record; a copy of a DA Form 2627-1, Record of Proceedings Under Article 15, UCMJ, dated 26 August 1966; a copy of Special Court-Martial Order Number 65, dated 19 September 1966, Headquarters, 1st Battalion, 21st Infantry; a copy of a 20 November 1966 DA Form 19-24, Statement; a copy of a 29 November 1966 DA Form 19-24, Statement; a copy of a 29 November 1966 document, Request Waiver of Transfer and Rehabilitative Efforts from Commander, Company A, 1st Battalion, 21st Infantry, and Commander, 1st Battalion, 21st Infantry; a copy of a 30 November 1966 DA Form 19-24, Statement; a copy of a 30 November 1966 letter to the applicant informing him that he was being processed for elimination for unfitness [applicant acknowledged receipt and his right to present his case before a board of officers, submit a statement, and be represented by counsel]; copy of a 1 December 1966 letter from the applicant to his commander in which he acknowledges being counseled [by an attorney from the Judge Advocate General Corps], waives his rights and declines to submit a statement; a copy of a 2 December 1966 Extract of Military Records of Previous Convictions; a copy of DA Form 20B, Insert Sheet to DA Form 20 (Record of Court-Martial Conviction); a copy of a 3-page letter, dated 5 December 1966, requesting the applicant be discharged for unfitness; a copy of a 14 December 1966 Medical Officer's Report; a copy of a 19 December 1966 1st Indorsement to a request for discharge for unfitness; a copy of an undated memorandum, subject:  Elimination of Personnel, approving the waiver of rehabilitation efforts and the separation of the applicant; a copy of Special Order Number 17, Headquarters, Fort Dix, dated 17 January 1967, discharging the applicant; a copy of the applicant's DD Form 214, Report of Transfer or Discharge; and various civilian prison reports from 1997-98 not related to the applicant's military service.

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

He was born on 31 August 1946 in Indianapolis, Indiana.  His father died when he was 12 years old and he and his 7 siblings were raised by his mother.  As a juvenile, he was in trouble with civil authorities on numerous occasions.  On 15 March 1966, he was inducted into the Army of the United States for 2 years. Following completion of all required military training, he was assigned to a unit in Germany, with duty as a supply clerk.

The applicant received NJP on two occasions.  On 19 July 1966, he was punished for failing to go to his appointed place of duty and dereliction of duty; on 26 August 1966, he was punished for disrespect to a noncommissioned officer.

The applicant was convicted by a special court-martial on 17 September 1966 for disobeying a lawful order from a superior noncommissioned officer, possession of a prohibited switchblade knife, and striking a fellow soldier in the face with his fists.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $62.00 per month for 6 months, and reduction from Private (E-2) to Private (E-1).

On 30 November 1966, the applicant's commander notified him that elimination proceedings were being initiated against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant acknowledged notification and consulted with legal counsel.  On 1 December 1966, he indicated by written endorsement that he understood the nature of the proceedings against him and waived all rights.  He added that he understood that he might encounter substantial prejudice in civilian life should he receive a less than honorable discharge and that he might be ineligible for many or all Veterans Administration (VA) benefits.  He declined to make a statement in his own behalf.

On 5 December 1966, the applicant's commander initiated separation action.  The applicant was medically and psychiatrically cleared for separation and the approving authority waived rehabilitative efforts and directed separation with a UD.  On 18 January 1967, the UD was executed.  The applicant had 6 months, 9 days of creditable service and 117 days of lost time due to confinement.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 11 September 1972, denied his request.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service.  The regulation further provided, in pertinent part, that service members discharged for unfitness would be furnished an undesirable discharge, unless circumstances warranted a general or honorable discharge.  Service members discharged for unsuitability would be furnished an honorable or general discharge.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant was afforded legal counsel and advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits. He was made aware of his rights and afforded the opportunity to submit statements in his own behalf.  He waived his rights and declined to make a statement.

2.  The applicant demonstrated a pattern of conduct characterized by resentment towards authority which rendered him unfit for military service.  The character of the applicant's discharge is commensurate with his overall record of military service.

3.  The applicant's civilian background was considered by the Board and found to be not sufficiently mitigating to warrant an upgrade in his discharge.

4.  The ADRB denied the applicant's request for an upgrade in 1972.

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

__mkp___  __esc___  __jtm____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041890	
SUFFIX		
RECON		
DATE BOARDED	20000124	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19670118	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A50.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.