MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  5 April 2001
	DOCKET NUMBER:  AR2000050329

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Celia L. Adolphi		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 be upgraded.

APPLICANT STATES:  That his discharge upgrade is needed in order to join 
community groups such as; the American Legion, Lions Club, etc.  He also states that his court-martial and discharge was too harsh, that he was not properly represented by counsel, and that his counsel gave no effort at all in his defense.  He further states that his commander’s priority was to discharge him as soon as possible in order to prevent him from being an aggravation to his command. 
In support of his application he submits a copy of his DD Form 214 (Report of Transfer or Discharge).

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 16 April 1962 as a light vehicle driver.  

The applicant’s records contain a DD Form 789 (Unit Punishment Record) which shows that the applicant was punished under Article 15, UCMJ, for being AWOL for 2 hours.  His punishment consisted of 14 days extra duty.

He was convicted by one summary and three special courts-martial of resisting arrest, of damaging private property, of violation of a lawful general regulation, of leaving the scene of an accident, of breaking restriction, and of being absent from his appointed place of duty on two specifications.  His punishment consisted of a forfeiture of pay, confinement, and a reduction to the pay grade of E-1.

The applicant underwent a separation medical examination on 18 January 1962
and was found qualified for separation.

The applicant underwent a psychiatric evaluation on 24 January 1962, which diagnosed him as having a passive aggressive reaction, chronic, moderate, unchanged.  The psychiatrist determined that he could distinguish right from wrong, possessed the mental capacity to participate in administrative or judicial proceedings, and that the applicant had no disqualifying mental defect sufficient to warrant disposition through medical channels.

On 9 March 1962, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-208, for unfitness.  He cited as the basis for his recommendation the applicant’s acts of misconduct.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

On 21 March 1962, the appropriate authority approved the recommendation 
for discharge and directed that he be furnished an Undesirable Discharge Certificate.  The applicant was discharged on 16 April 1962.  He had a total 
of 2 years and 19 days of creditable service and had 67 days of lost time due to 
confinement.
The applicant applied to the Army Discharge Review Board (ADRB) on 30 March 1966 for an upgrade of his discharge.  The ADRB determined that his discharge was proper and denied his request on 22 July 1966.

Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Action to separate an individual was to be taken when, in the judgement of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

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 Board notes the applicant’s contention that his discharge upgrade is needed in order to join community groups.  While the Board is empathetic, it does not upgrade discharges for the purposes of joining community groups.

2.  The Board also notes the applicant’s contentions that his court-martial and discharge were too harsh, that he was not properly represented by counsel, and that his counsel gave no effort at all in his defense.  The Board further notes that the applicant received one summary and three special courts-martial for his acts of misconduct which led to his undesirable discharge, that he declined representation by counsel, and that he was afforded the opportunity to submit statements in his own behalf during the process, but declined to do so.

3.  There is no evidence in the available records, or provided by the applicant, to show that his discharge was unjust and should be upgraded.

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

5.  The type of separation directed and the reasons for that separation were appropriate considering all of the available 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

__jh_  __ho____  ___ca_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000050329	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010405	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19620416	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.