MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 February 2001                   
	DOCKET NUMBER:   AR2000047801

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Donald P. Hupman 		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 honorable or general and that his narrative reason for separation be changed to “Convenience of the Government”.  

APPLICANT STATES:  That his rights were violated by his imprisonment, that he was promised one thing and was given another and that he was given the wrong discharge without a trial.  He contends that he was immature and a drunk.  In a letter of explanation, the applicant contends that his discharge should be upgraded because there was no violence in any of his offenses and that most of misconduct occurred while he was in a “Black-out” or passed out.  It has taken him 30 years to accept his condition and he is 15 months sober at this time.  He contends that he received nonjudicial punishment for sleeping on duty when in fact he was just staying warm in -40 degree weather.  He states that he was punished for things that the E-5’s were doing.  He goes on to state that he was sent to the stockade for taking the weekend off and spending it with a friend who was in labor in the hospital.  He claims that he called his unit and explained the situation; however, the military police got him and he was placed in maximum security until he signed his discharge.  He contends that he would sign anything after 45 days.  He further contends that when he was discharged the papers should have been a general discharge and the only reason he signed the other was because he was scared and just wanted it over.  In support of his application, he submits a letter of explanation and a copy of his DD Form 214 (Report of Transfer or Discharge).       

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

The applicant enlisted on 26 April 1968 for a period of 3 years.  He successfully completed basic and advanced individual training and served as a sergeant missile crewman.  

Between 4 October 1969 and 30 September 1970, nonjudicial punishment was imposed against the applicant on 10 separate occasions for various infractions which include failure to report to his appointed place of duty, being disrespectful in deportment to his superior noncommissioned officer, violating a lawful general regulation, disobeying a lawful order, derelict in the performance of his duties (sleeping on guard post), AWOL and wrongful appropriation of a .45 caliber pistol.

On 21 September 1970 the applicant was notified of his pending separation 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 and representation by counsel.  His statement indicates that he submitted statements in his own behalf; however, these statements are not available to the Board. 
The intermediate commander recommended that the applicant be discharged for unfitness under the provisions of Army Regulation 635-212 and that he be issued an Undesirable Discharge Certificate.

The applicant went AWOL on 10 October 1970.  He was apprehended by civilian authorities on 13 October 1970, returned to military control and placed in the post stockade.  There is no evidence in the available records which shows how long the applicant remained in the post stockade.  

The approval authority’s action is not contained in the available records. However, item 11c (Reason and Authority) on the applicant’s DD Form 214 shows the regulatory authority as Army Regulation 635-212 & 4th Ind dtd 3 Nov 70 AKPSIAC-MPPA CG [Commanding General] USAFACFS [U.S. Army Training Center, Field Artillery, Fort Sill].  

Accordingly, the applicant was discharged under other than honorable conditions on 6 November 1970 under the provisions of Army Regulation 635-212 for unfitness due to an established pattern for shirking.  He had served 
2 years, 6 months and 7 days of total active service with 3 days lost due to AWOL.  

Item 11c (Reason and Authority) on the applicant’s DD Form 214 shows the Separation Program Number (SPN) as “386”.  Section III of Army Regulation 635-5 (Separation Documents) states the reason for separation based on SPN “386” is “Unfitness, an established pattern for shirking” and the regulatory authority is Army Regulation 635-212.

There is no indication in the applicant’s personnel records that he applied to the Army Discharge Review Board within its 15-year statute of limitations. 

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Section III of Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation program number and authority governing separations.

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.  Evidence of record shows the applicant was placed in the post stockade on 13 October 1970 after he was apprehended by civilian authorities for being AWOL.  Evidence of record also shows the approval authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness on 3 November 1970 and the applicant was discharged on 6 November 1970.   

2.  The Board considered the applicant’s contention that his rights were violated when he was placed in “maximum security” until he signed his discharge.  However, there is no evidence of record, and the applicant has provided no evidence, which shows he was improperly or unlawfully held in confinement as claimed. 

3.  The Board noted the applicant’s contention that he was to receive a general discharge but received a discharge under other than honorable conditions instead.  However, evidence of record shows that the intermediate commander recommended that the applicant be furnished an Undesirable Discharge Certificate and the approval authority concurred with the recommendation on 
3 November 1970.   

4.  His contention that he was given the wrong discharge without a trial was also noted by the Board.  However, evidence of record shows that the applicant waived consideration of his case by a board of officers on 25 September 1970.
 
5.  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. 

6.  The type of discharge directed and the reasons for this separation were appropriate considering all the facts of the case.

7.  The narrative reason for separation used in the applicant’s case is correct and was applied in accordance with the applicable regulations.

8.  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.

9.  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

JHL_____  GDP____  DPH____  DENY APPLICATION

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

INDEX

CASE ID	AR2000047801	
SUFFIX		
RECON		
DATE BOARDED	20010208	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19701106	
DISCHARGE AUTHORITY	AR 635-212  	
DISCHARGE REASON	Unfitness	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.