MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 April 2001                  
	DOCKET NUMBER:   AR2001054110

	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. Sherri V. Ward 		Chairperson	
	Mr. George D. Paxson 		Member	
	Mr. James E. Anderholm 		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:  That his discharge is punitive in nature and was not ordered by a court-martial.

EVIDENCE OF RECORD:  The applicant's military records show that he enlisted on 12 June 1961 for a period of 3 years.  He successfully completed basic and advanced individual training and was transferred to Fort Bragg, North Carolina, for duty as a light weapons infantryman.

On 13 February 1962 the applicant was convicted by a special court-martial of being AWOL from 5 January 1962 to 18 January 1962.  He was sentenced to be confined at hard labor for 1 month, reduced to Private E-1 and to forfeit $55 per month for 6 months.

The convening authority approved only so much of the sentence as provided for  confinement at hard labor without confinement for 45 days, reduction to Private E-1 and forfeiture of $55 per month for 6 months.

On 30 March 1962 the applicant was convicted by a special court-martial of stealing personal property from a fellow soldier (total value of about $166).  He was sentenced to be confined at hard labor for 6 months, forfeiture of $55 pay per month for 6 months and to be reduced to Private E-1.  The convening authority approved the sentence on 10 April 1962.

The unexecuted portion of the sentence to forfeiture of $55 pay per month for 
6 months was remitted effective 30 April 1962.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records indicate that on 10 May 1962 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-208 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 9 months and 22 days of total active service and had 39 days lost time due to AWOL and confinement.

The Army Discharge Review Board denied the applicant’s requests for a discharge upgrade on 15 February 1973 and on 21 September 1981.

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 involvement in incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.
The 1995 Edition of the Manual for Courts-Martial provides in Rule 1003 (Punishments) that a court-martial may not adjudge an administrative separation from the service.  Rule 1003 also provides, in pertinent part, that there are three types of punitive separation, a dismissal, a dishonorable discharge and a bad conduct discharge.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The Board considered the applicant’s contention that his discharge is punitive in nature.  However, the applicant’s discharge is an administrative separation, not a punitive separation.  

2.  The applicant’s contention that his discharge was not ordered by a court-martial is valid.  In accordance with the 1995 Edition of the Manual for Courts-Martial, a court-martial may not adjudge an administrative separation.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation under the provisions of Army Regulation 635-208 was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation appear to be appropriate.

5.  The Board reviewed the applicant’s available record of service which included two special court-martial convictions and 39 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

6.  The applicant failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

7.  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.

8.  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

SVW___  GDP_____  JEA_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001054110	
SUFFIX		
RECON		
DATE BOARDED	20010410	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19620510	
DISCHARGE AUTHORITY	AR 635-208  	
DISCHARGE REASON	Unfitness due to frequent incidents of a discreditable nature with civil or military authorities.	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.