MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 October 2001   
	DOCKET NUMBER:   AR2001059182

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 under other than honorable conditions (UOTHC) discharge be upgraded.

APPLICANT STATES:  That he entered the Army in January 1956 and was discharged on 13 December 1958 from the 2128th Military Police Detachment in Fort Knox, Kentucky.  

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

The applicant entered active duty on 23 January 1956 and completed basic combat training at Fort Leonard Wood, Missouri.  He was further assigned to Fort Knox, Kentucky, for advanced individual training (AIT).  

On 17 July 1956, the applicant was convicted by a special court-martial of one period of AWOL from 13 April 1956 to 7 June 1956.  He was sentenced to confinement at hard labor for six months and forfeiture of $50.00 pay per month for six months.  On 26 July 1956, the unexecuted portion of the sentence was suspended.  

The applicant was AWOL again from 2 August 1956 to 21 August 1956.  

On 29 August 1956, the unexecuted portion of the sentence to confinement at hard labor for six months and forfeiture of $50.00 pay per month for six months was vacated.  On the same day, he was convicted by a second special court-martial for the period of AWOL from 2 August 1956 to 21 August 1956.  He was sentenced to confinement at hard labor for an additional six months and forfeiture of $50.00 pay per month for six months.

On 7 November 1957, he was convicted by a third special court-martial of being AWOL from 6 September 1957 to 21 October 1957.  He was sentenced to confinement at hard labor for six months and forfeiture of $55.00 pay per month for six months.

On 15 November 1957, the applicant underwent a psychiatric examination and was cleared for separation under the provisions of Army Regulation 635-208 because of undesirable habits and traits of character.

While serving confinement as a result of his third special court-martial, the applicant was notified to appear before a board of officers who would determine whether he should be separated from the service under the provisions of Army Regulation 635-208.  

On 6 December 1957, the board of officers recommended that the applicant be discharged from the service under the provisions of Army Regulation 635-208 because of unfitness due an established pattern of shirking with an undesirable discharge.  The recommendations of the board were approved on 9 December 1957.  

The facts and circumstances pertaining to the applicant's discharge are not in his records.  However, his records contain a Case Report and Directive from the Army Discharge Review Board (ADRB) which indicates that the convening authority approved the recommendations of the board and suspended the remainder of the applicant’s sentence to confinement upon the effective date of the administrative discharge.  In addition, this report states that the applicant was released from confinement on 12 December 1957 and discharged on 13 December 1957 under the provisions of Army Regulation 635-208, for unfitness due to an established pattern of shirking with issuance of an undesirable discharge.  At the time of his discharge, he had served 5 months and 16 days of active military service and had 522 days of lost time due to AWOL and confinement.

On 29 August 1978, the applicant applied to the ADRB for an upgrade his discharge.  On 24 March 1980, the ADRB determined that the applicant’s discharge was proper and equitable and voted to deny the applicant’s request.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided, in pertinent part, for the separation of personnel for an established pattern for shirking.  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 the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  In view of the applicant's numerous acts of indiscipline, it does not appear that his undesirable discharge was too severe.

3.  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.

4.  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

JL_______  MDM_____  JAM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001059182	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011011	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19571213	
DISCHARGE AUTHORITY	AR635-208.  .  .  	
DISCHARGE REASON	Misconduct-Shirking	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.