MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 February 2001                  
	DOCKET NUMBER:   AR2000047676

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor 		Chairperson	
	Mr. Walter T. Morrison 		Member	
	Mr. Thomas Lanyi 		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 discharge under other than honorable conditions be upgraded to general.

APPLICANT STATES:  In effect, that his discharge should be upgraded to general.

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

The applicant enlisted on 17 March 1969 for a period of 3 years.  He successfully completed basic training; however, he was recycled in advanced individual training (AIT) and subsequently went AWOL.

On 3 December 1969 the applicant was convicted by special court-martial (SPCM) of two specifications of being AWOL (from 2 September 1969 to
9 September 1969 and from 15 September 1969 to 14 November 1969).  He was sentenced to confinement at hard labor for 3 months and forfeiture of $82.00 pay per month for 3 months.  On 15 January 1970 the convening authority approved only so much of the sentence as provides for confinement at hard labor for
2 months and forfeiture of $82.00 pay per month for 2 months.

Effective 16 January 1970 the unexecuted portion of the sentence to confinement at hard labor for 2 months was suspended until 3 February 1970.

The applicant was convicted by SPCM on 19 August 1970 of three specifications of being AWOL (from 3 February 1970 to 24 April 1970; from 11 May 1970 to
21 July 1970; and from 22 July 1970 to 22 July 1970).  He was sentenced to confinement at hard labor for 5 months and forfeiture of $80.00 pay per month for
5 months.  The convening authority approved the sentence on 3 September 1970.

On 23 September 1970 the applicant was notified of his pending separation from the service under the provisions of Army Regulation 635-212 for unfitness.  

After consulting with counsel on 25 September 1970, the applicant waived consideration of his case by a board of officers, waived a personal appearance before a board of officers and waived representation by counsel.  He elected not to submit a statement in his own behalf and acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued. He further acknowledged that if an undesirable discharge under conditions other than honorable were issued he may be ineligible to many or all benefits as a veteran under both Federal and State laws.   

On 25 September 1970 the applicant underwent a separation medical examination and he was found qualified for separation under the provisions of Army Regulation 635-212 with a physical profile of 111111.
The applicant underwent a psychiatric evaluation on 25 September 1970 and was diagnosed as having an emotionally unstable personality.  The psychiatrist determined that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He also determined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The psychiatrist recommended separation under the provisions of Army Regulation 635-212 for unfitness.

On 19 November 1970 the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness and that he be furnished an undesirable discharge.  He cited the applicant’s acts of misconduct which resulted in two SPCMs.  The commander also stated that the applicant was a very immature and impulsive individual who had little capacity or interest to make a satisfactory adjustment to the military and who would not benefit from any further rehabilitative efforts.        

On 20 November 1970 the intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 for unfitness and that he be furnished an Undesirable Discharge Certificate.

The appropriate authority approved the recommendation on 9 December 1970 and directed that the applicant be furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 16 December 1970.  He had served 6 months and 26 days of total active service and had 429 days of lost time due to AWOL and confinement.

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

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of 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. 

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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  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.

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

RVO____  WTM____  TL______  DENY APPLICATION

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

INDEX

CASE ID	AR2000047676	
SUFFIX		
RECON		
DATE BOARDED	20010206	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19701216	
DISCHARGE AUTHORITY	AR 635-212  	
DISCHARGE REASON	Unfitness	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.