MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 February 2001   
	DOCKET NUMBER:   AR2000049877

	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. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Roger W. Able		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  In effect, that he did not receive five Article 15’s (nonjudicial punishment) and that he was never AWOL.  He contends that the Army is showing AWOL time, when in fact, he was in the hospital at Fort Bragg, North Carolina, having surgery on his right knee.  In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge) with an effective date of 30 November 1965 and a copy of an undated VA Administrative Decision.  

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

The applicant enlisted on 7 July 1961 for a period of 3 years.  He served as a heavy weapons infantryman and was honorably released on 24 June 1964.  He entered active duty again on 8 July 1964 for a period of 3 years.

Between 10 November 1964 and 27 October 1965, on five separate occasions, nonjudicial punishment was imposed against the applicant for failure to go at the time prescribed to his appointed place of duty and six specifications of AWOL. 

The applicant’s DD Form 214 and item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) shows seven separate AWOL periods totaling 45 days lost (from 14 June 1965 to 23 June 1965; 5 July 1965 to 8 July 1965;
2 September 1965 to 2 September 1965; 27 September 1965 to 5 October 1965; 9 October 1965 to 19 October 1965; 30 October 1965 to 31 October; and 
15 November 1965 to 22 November 1965).
 
The applicant underwent a psychiatric evaluation on 25 October 1965 and was diagnosed with an inadequate personality, immature, poor judgment, poor motivation for military duty, social incompatability, and unable to take authoritative figures.  The psychiatrist recommended separation from the service under the provisions of Army Regulation 635-208.    

On 2 November 1965 the unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for unfitness with an undesirable discharge.  He cited the applicant’s constant violation of UCMJ Article 86 (AWOL), complete disrespect for military authority and his five Article 15’s.   

After consulting with counsel the applicant waived consideration of his case by a board of officers, waived representation by counsel and elected not to submit a statement in his own behalf.

The intermediate commander recommended that the applicant be separated with an undesirable discharge.

On 18 November 1965 the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-208, for unfitness.  He also directed that the applicant be furnished an Undesirable Discharge Certificate. 

Accordingly, on 30 November 1965, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-208, for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  He had served 4 years, 3 months and 9 days of total active service with 45 days lost due to AWOL.

There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 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 for unfitness.  Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities.  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.  While the applicant contends that he did not receive five Article 15’s, evidence of record shows that nonjudicial punishment was imposed against the applicant on five occasions during his last enlistment.

2.  Although the applicant contends that he was never AWOL, evidence of record shows that he went AWOL on seven separate occasions for a total of 45 days.

3.  There is no evidence of record, and the applicant has provided no evidence, to support his contention that he was not AWOL and was actually having surgery on his right knee at Fort Bragg, North Carolina.

4.  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. 

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

6.  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.

7.  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

JNS____  MHM____  RWA_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049877	
SUFFIX		
RECON		
DATE BOARDED	20010227	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19651130	
DISCHARGE AUTHORITY	AR 635-208  	
DISCHARGE REASON	Unfitness	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.