MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 October 2000
	DOCKET NUMBER:  AR200043894

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Arthur A. Omartian 		Member	
	Mr. William D. Powers		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 a fully honorable discharge.

APPLICANT STATES:  In effect, that he was unable to adapt mentally, and physically to the military.  He was only 17 years old and suffering from Bell’s Palsy at the time of his enlistment.  He was also underweight.  He had to eat bananas to meet the weight requirement.  

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

On 16 June 1970, both the applicant’s parents signed a declaration of parental consent for him to enlist in the military.  On 19 June 1970, at age 17, he enlisted in the Regular Army for a period of 3 years. 

On 19 June 1970, a Standard Form 88 (Report of Medical Examination) shows that the applicant received an induction physical examination.  Overall, he had no disqualifying defects or communicable diseases.  There appeared to have been some question concerning his weight, but he was found qualified for enlistment. Also, he failed to show that he had Bell’s Palsy on his Standard Form 89 (Report of Medical History).

On 29 July 1970, while assigned to basic training at Fort Bragg, North Carolina, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being absent without leave (AWOL) from 28-29 July 1970.  His punishment included forfeiture of pay, extra duty and restriction.

On 21 August 1970, he was assigned to Fort Jackson, South Carolina for advanced training.  On 18 September 1970, NJP was imposed against him for being absent from his place of duty from 13-14 September 1970, for being derelict in the performance of his duty on 14 September 1970, and for failure to be at his appointed place of duty at the prescribed time on 17 September 1970.  His punishment included forfeiture of pay, extra duty and restriction.

On 28 October 1970, NJP was imposed against him for being AWOL from 
21-28 October 1970.  His punishment included an oral reprimand, extra duty and restriction.

He then was AWOL from 9-13 November 1970.  On 17 November 1970, he again went AWOL.  On 3 December 1970, civilian authorities in Lexington, South Carolina picked him up, but he was not returned to military control until 
7 January 1971.

On 29 January 1971, he was convicted by a special court-martial of being AWOL from 9-13 November 1970 and from 17 November 1970-7 January 1971.  His approved sentence included confinement at hard labor for 3 months (suspended) and forfeiture of $50.00 pay per month for 3 months. 

On 20 February 1971, he was assigned to Fort Rucker, Alabama to attend the United States Army Aviation School.  He then went AWOL from 4-9 March 1971. On 9 March 1971, he was returned to the Special Processing Detachment, Fort Jackson.

On 12 March 1971, NJP was imposed against him for being AWOL from 
4-9 March 1971.  His punishment included forfeiture of pay for 2 months.

On 17 March 1971, the suspended portion of his sentence to confinement at hard labor for 3 months was vacated.  He was to be confined at the Post Stockade, Fort Jackson.  However, it appears that he was only held in a local Correctional Holding Detachment at Fort Jackson and no lost time was assessed.

On 23 March 1971, he underwent a medical examination by professionally trained personnel and he was determined to be qualified for discharge.  He had experienced no significant medical problems while on active duty.

On 25 March 1971, the applicant underwent a mental status evaluation.  He was determined to have no mental defects sufficient to warrant separation from the service under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation.  However, he was determined to have an antisocial personality, chronic, mild; manifested by impulsive “sociopathic” behavior that existed prior to service.  He was also determined to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and to participate in board proceedings.  

On an unknown date, the applicant’s commander notified him that he was being recommended for separation under the provisions of Army Regulation 635-212, for unfitness, due to involvement in frequent incidents of a discreditable nature with civil or military authorities. 

On 31 March 1971, the applicant consulted with legal counsel.  He acknowledged that he had been advised of the basis for the contemplated action and its effects, and the rights available to him.  He also stated that he understood the consequences of receiving a UD.  He waived further representation by legal counsel and a personal appearance before a board of officers.  He did not submit a statement in his own behalf.

On the very same day, his unit commander recommended separation with a UD.
On 13 April 1971, his intermediate commander recommended separation with a UD.

On an unknown date, the approval authority approved the recommendation for discharge and directed the issuance of a UD, under the provisions of Army Regulation 635-212, for unfitness.  

On 8 May 1971, he was discharged.  He had completed 8 months and 
18 days of active military service and he had a total of 105 days lost time due to being AWOL.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge.  

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 a UD, unless circumstances warranted a general or honorable 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.  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.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3.  The Board noted that the applicant met entrance qualification standards to include age after parental consent was obtained.  The Board found no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation. 

4.  An induction physical examination determined that the applicant was qualified for enlistment.

5.  During the discharge process, professionally trained medical personnel determined that the applicant was qualified for discharge.  He had experienced no significant medical problems while on active duty.  He was mentally responsible and able to distinguish right from wrong and to adhere to the right.  He has submitted no medical evidence to the contrary. 

6.  His performance and conduct clearly departed from acceptable Army standards and, in fact, he knowingly violated the Army’s policies when he continually went AWOL.

7.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.  He has provided no evidence to show that he was disqualified at the time of enlistment or that his case warranted processing through physical disability channels at the time of separation.

8.  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

_mmd___  __aao___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043894	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001026	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1971058	
DISCHARGE AUTHORITY	AR635-212  	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.		

On 3 February 1971, the suspended portion of his sentence to confinement at hard labor for 3 months was vacated.  He was confined at the Post Stockade, Fort Jackson.