MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 April 2001
	DOCKET NUMBER:   AR2000050321

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. George D. Paxson		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 be upgraded to a general discharge.

APPLICANT STATES:  In effect, that racism played a significant role in his discharge because his trial by court-martial involved racist behavior on the part of his accusers.  He also states that his accusers perjured themselves at his trial by court-martial and that his behavioral problems prevented him from serving to his full capacity.  In support of his application he submits a copy of his report of separation, the denial of his case by the Army Discharge Review Board (ADRB), several medical documents, a summarized and incomplete copy of his record of trial by court-martial and five third party letters related to his post-service conduct.

EVIDENCE OF RECORD:  The applicant's military records were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri which destroyed millions of service records.  However, the documents provided by the applicant show:

He was inducted at Fort Jackson, South Carolina on 13 November 1957.  He completed his training as a heavy weapons infantryman and was transferred to Germany.

On 2 June 1959 the applicant was admitted to the hospital for pathological alcoholism and psychiatric observation.  He remained in the hospital for 9 days and was determined to have no neurological diseases.  He was diagnosed as having maladjustment, situational, acute, severe, improved, manifested by depression, alcoholism, and unconventional behavior.

Although the Board cannot determine what charges were preferred against the applicant, there is sufficient evidence to show that three charges were preferred against him on 11 June 1959 for an incident that occurred on 26 April 1959 while the applicant was serving as a gate guard.  It appears that the incident involved the applicant loading his sidearm and pointing it at personnel attempting to enter his post.

The applicant plead not guilty to the charges against him and was tried by a special court-martial on 23 June 1959.  He was represented by counsel and his counsel challenged one member of the court-martial panel who withdrew from the proceedings.  It also appears that he exercised his rights and elected not to testify in his own behalf.  His counsel contended that the applicant was provoked by his accusers making racial remarks and being uncooperative during the applicant’s attempts to determine their eligibility to enter through his guard post.

Testimony given at the trial by court-martial revealed that the applicant loaded his sidearm, ejected two rounds and pointed the firearm at the individuals, who were off-duty military policemen.  The applicant was then relieved of his post by the appropriate authorities.

He was convicted of two of the three charges against him and was sentenced to confinement at hard labor for 6 months, reduction to the pay grade of E-1 and a forfeiture of pay.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his DD Form 214 shows that he was discharged under other than honorable conditions on 29 August 1959 under the provisions of Army Regulation 635-208 for unfitness based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 7 months and 25 days of total active service and had 53 days of lost time (presumably due to confinement).

The applicant applied to the ADRB and on 5 August 1965, after careful consideration of his military records and all of the available evidence, the ADRB determined that he had been properly discharged. 

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in 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.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

4.  While the applicant has provided a copy of his record of trial, the Board is unable to determine exactly what charges the applicant was convicted of and what the exact nature of his administrative discharge consisted of.  Therefore, since the ADRB reviewed the applicant’s records before the fire destroyed them and determined that his discharge was proper, it must be presumed that there was sufficient basis that is not explained in the available evidence, to administratively discharge him before his sentence to confinement was completed. 

5.  The Board has noted the third party statements submitted by the applicant with his application.  However, given the lack of sufficient information in this case, they are not sufficiently mitigating to warrant relief under the circumstances.

6.  The applicant’s contention that racial prejudice played a role in his discharge proceedings has been noted by the Board and while the Board does not condone such conduct, there is insufficient information available to determine that such was the case.  The applicant was afforded the opportunity to assert his innocence before a trial by court-martial and was unable to convince the panel of officers that the incident was racially motivated or that his actions were justified.

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

___ja ___  ___sw___  __gp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000050321	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/04/10	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1959/08/29	
DISCHARGE AUTHORITY	AR635-208	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.