PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           28 March 2002                  
	DOCKET NUMBER:   AR2001061182

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge (UD) be upgraded to a fully honorable discharge.

3.  The applicant states that he believes "he was forced to make an ethical decision [which], though not correct, was the only option . . ." he felt that he needed to get home to help his family.  He adds that today’s Army would have granted him emergency leave.

4.  In support of his application, the applicant submits four character reference letters from a local attorney, the officer-in-charge of the Hopkins County (Kentucky) Jail, the Hopkins County Attorney, and a sergeant first class stationed at Fort Campbell, Kentucky.  All of these character references speak to the fact that he was young and immature when he served in the Army; that he has more than 40 years of good post-service conduct; and that he labored 15 years as a coal miner and 25 years as an ironworker before being forced to retire due to health problems.  He has been a deputy jailer at the Hopkins County Detention Center since 1997, serving in a position of responsibility and authority as a shift captain. He is a model citizen and Christian and has never received as much as a speeding ticket.

5.  The applicant’s military records show that he was born on 26 July 1942 and enlisted in the Regular Army for 3 years on 5 August 1959; he was 17 years of age at the time of his enlistment and had completed 8 years of schooling.  He was trained in military occupational specialty (MOS) 111.07 (Light Weapons Infantryman) and, on 18 January 1960, he was assigned to Fort Bragg, North Carolina.

6.  The applicant first experienced disciplinary problems when he left his unit in an absent without leave (AWOL) status from 27-28 June 1960.  On 19 July 1960, he was convicted of this offense by a summary court-martial and sentenced to reduction from pay grade E-3 to pay grade E-2 and forfeiture of $55.00 pay.

7.  The applicant again departed his unit in an AWOL status again from 12 September-17 October 1960.  On 21 October 1960, he was convicted of this offense by a special court-martial.  As punishment, he was sentenced to reduction from pay grade E-2 to pay grade E-1, confinement at hard labor for 6 months and forfeiture of $55.00 pay per month for 6 months.

8.  On 17 December 1960, the applicant escaped from the Fort Bragg Stockade and remained AWOL until apprehended by civilian authorities in Madisonville, Kentucky, on 13 January 1961.  He was returned to military control at the Special Processing Detachment, Fort Knox, Kentucky, where, on 7 February 1961, he was convicted by a special court-martial of the above offense.  He was again sentenced to confinement at hard labor for 6 months and forfeiture of $55.00 pay per month for 6 months.
9.  On 25 January 1961, while the applicant was confined at the Special Processing Detachment, he underwent a mental status evaluation by professionally trained personnel and was determined to be suffering from a passive aggressive reaction that existed prior to service.  He had been in the military 18 months and he had a history of court-martial actions for being AWOL. He rejected military authority and discipline.  Furthermore, he was determined to have no disqualifying mental or physical defects sufficient to warrant disposition through medial channels.  He was mentally responsible, able to distinguish right from wrong and adhere to the right.  He also had the mental capacity to understand the nature of board proceedings and he was able to cooperate in his own defense.  The mental status evaluation recommended separation under the provisions of Army Regulation 635-208 for unfitness.

10.  Administrative separation action was initiated against the applicant and, on 31 January 1961, he waived his rights to a hearing before a board of officers, representation by counsel, and he declined to submit a statement in his own behalf.  On 23 February 1961, the appropriate authority accepted the applicant's waiver, approved the recommendation for separation, and directed the issuance of a UD for unfitness under the provisions of Army Regulation 635-208.  On 2 March 1961, the applicant was discharged for unfitness under the provisions of Army Regulation 635-208, with a UD.  He had completed 1 year, 1 month and 10 days of active military service and he had 169 days lost time due to AWOL and confinement.

11.  The applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade on two occasions.  On 6 October 1961, the ADRB denied the applicant's request for reinstatement and an upgrade of his discharge to honorable.  On 13 July 1977, the ADRB again denied the applicant's request for an upgrade of his discharge to honorable.  

12.  Amy Regulation 635-200, paragraph 3-6, 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, or is other wise so meritorious that any other characterization would clearly be inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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, that members found to be unfit for further military service, and without rehabilitative potential, would be separated.  An undesirable discharge was normally considered appropriate.

CONCLUSIONS:

1.  The applicant was a youth of 17 when he enlisted in the Regular Army and he possessed only an 8th grade education.  He served approximately 1 year without incident before going AWOL three times to return to Hopkins County, Kentucky.  

2.  Since his discharge on 2 March 1961, the applicant has been a hard-working, model citizen in Madisonville, Kentucky.  For approximately the past 5 years, he has worked in law enforcement as a correctional officer in the Hopkins County Jail.  Over the past 40 years since his undesirable discharge, he has had no trouble with the law, not receiving so much as a speeding ticket.

3.  The applicant has suffered long enough with the stigma of a UD.  In light of his good post-service conduct, and considering the nature of his indisciplines while on active duty, it would be appropriate to upgrade his discharge to a general discharge (GD) under honorable conditions.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.   

4.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records, but only as indicated below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  Voiding the UD now held by the individual concerned; and

	b.  Issuing to him a GD under honorable conditions for the period under review.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__FNE___  ___LE__  __TL___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred N. Eichorn___
		        CHAIRPERSON

INDEX

CASE ID	AR2001061182	
SUFFIX		
RECON	 	
DATE BOARDED	20020328 	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19610302	
DISCHARGE AUTHORITY	AR635-208 	
DISCHARGE REASON	A51.00	
BOARD DECISION	(PARTIALGRANT)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.