MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  28 February 2002
	DOCKET NUMBER:  AR2001061843

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John T. Meixell		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:  As the spouse of the deceased former service member (FSM), that the FSM’s undesirable discharge be upgraded to honorable.

APPLICANT STATES:  That the FSM’s discharge was unjust because of the pressure and stress that he was under due to working conditions and severe illness of his daughter.  The Red Cross failed to assist the FSM and the military refused to assist him by denying an emergency leave.  The FSM’s problem was caused by a military officer who had no respect for him or his family.  The applicant believes that the FSM’s good time should account for something and that the FSM’s undesirable discharge should be upgraded to honorable.  In support of the FSM’s application, the applicant submits two DD Forms 214 (Report of Separation from the Armed Forces of the United States), a copy of the FSM’s Discharge Certificate from the US Air Force (USAF), and two character references. 

COUNSEL CONTENDS:  The Disabled American Veterans (DAV), as counsel for the applicant, contends that at the time the FSM’s original claim was submitted, he realized the errors he had committed during his prior military service, misconduct.  The FSM’s spouse continues to seek equity as an upgrade of the FSM’s discharge, which will allow her to be eligible for Veterans benefits (VA) and to improve her quality of life.  The FSM, before his death, had worked in the community for many years in an effort to assist and encourage others to be more productive and seek a better way of life.  He served as a Deacon at his church for many years and the documents provided attest to his long-time service.  Letters of recommendation from high ranking officials, which were provided by the FSM’s spouse, attest to the FSM’s devotion to community and family.  Counsel also states that the applicant’s spouse now seeks reasonable equity for her late husband and to claim his VA benefits to improve her qualify of life, which they believe to be his original intent when filing his original claim many years ago.  The FSM’s spouse should not continue to be penalized for her late husband’s indiscretions forty years ago and seeks to claim equity.  Counsel requests the Board’s careful and sympathetic consideration of all the evidence of record be used in rendering a fair and impartial decision.

EVIDENCE OF RECORD:  The FSM's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources and show he initially enlisted in the USAF on 10 June 1949, and was discharged under honorable conditions on 27 March 1950.  He enlisted in the Army on 29 January 1953.  He continued to serve until he was honorably discharged on 13 April 1953, in order to reenlist.  He reenlisted on 14 April 1953.

The facts and circumstances pertaining to the FSM’s discharge are not present in the available records.  However, his DD Form 214 shows that on 2 November 1954, he was discharged under the provisions of Army Regulation 615-368, for unfitness.  He was furnished an Undesirable Discharge Certificate.  He had a total of 2 years, 5 months, and 2 days of creditable service.

There is no evidence that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation 
provided for the discharge of individuals who had demonstrated their unfitness 
by giving evidence of undesirable habits of character manifested by misconduct.

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 and counsel’s contentions; however, there is no evidence in the available records, and the applicant has provided no evidence, to support her contentions or to show that the FSM’s discharge was unjust and should be upgraded.

2.  In the absence of evidence to the contrary, it must be presumed that the FSM’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  

3.  The type of separation directed and the reasons for that separation were appropriate considering all of the facts of the case.

4.  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.

5.  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

___ro__  ___jm___  ___ca_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001061843	
SUFFIX		
RECON		
DATE BOARDED	20020228	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19530413	
DISCHARGE AUTHORITY	AR 635-368	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.