MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           23 April 2002                 
	DOCKET NUMBER:   AR2001062563

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Thomas Lanyi		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  The applicant makes no contentions.

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

That on 19 August 1969, he enlisted in the Regular Army for a period of 3 years. He completed basic combat training at Fort Jackson, South Carolina, and on 24 October 1969, he was assigned to Fort Rucker, Alabama, for advanced individual training (AIT), which he never completed.  He left his unit at Fort Rucker in an absent without leave (AWOL) status on 11 February 1970.  On 
15 March 1970, he returned to military control at the Special Processing Detachment (SPD), Fort Meade, Maryland. 

On 8 April 1970, the applicant was convicted by a special court-martial of the above AWOL offense.  His sentence included confinement at hard labor for 
30 days and forfeiture of $75.00 pay for 1 month.  On 28 April 1970, the unexecuted portion of his 30-day sentence to confinement was suspended for
2 months.  

On 30 April 1970, the applicant left his unit AWOL and he remained AWOL until he returned to military control at the SPD, Fort Knox, Kentucky, on 3 June 1970.  On 13 July 1970, he was convicted by a special court-martial of being AWOL from 30 April-3 June 1970.  His sentence included confinement at hard labor for 4 months and forfeiture of $80.00 pay per month for 4 months.  On 21 July 1970, he was confined at Fort Riley, Kansas.  While at Fort Riley, civil authorities placed a detainer against him on charges of breaking and entering and grand larceny.

On 25 August 1970, the applicant underwent a mental status evaluation by the Chief, Neuropsychiatry, Irwin Army Hospital, Fort Riley.  It was determined that he had a history of repeated acts of a discreditable nature with civilian and military authorities.  Prior to enlistment, he was arrested for truancy, for being drunk and disorderly, for setting off false fire alarms and various other offenses for which he received probation.  At the time of his evaluation, he stated that he did not like to be told what to do and that he would not return to duty.  He was found to have no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to participate in board proceedings.  The examining official also felt that he would not adjust to military life and that further rehabilitative efforts would be non-productive.  On 27 August 1970, he underwent a medical examination that determined he was physically qualified for separation.
On 18 September 1970, the applicant authenticated a statement with his own signature in which he acknowledged that he had consulted with legal counsel.  He acknowledged that he had been advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-212, for unfitness with a UD.  He further acknowledged that he understood the effects of a UD, as well as the rights available to him.  He waived further representation by legal counsel and a personal appearance before a board of officers.  He did not submit a statement in his own behalf.

On the same date, both the applicant's commander and his intermediate commander recommended that he be separated with a UD under the provisions of Army Regulation 635-212 for unfitness, due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  

On 24 September 1970, competent authority waived further rehabilitation, approved the recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-212, for unfitness and issued a UD.

On 30 September 1970, the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness with a UD.  He had completed 5 months and 23 day of active military service.  He also had 229 days lost time due to being AWOL and in military confinement.  

Evidence of record indicates the applicant applied to the Army Discharge Review Board (ADRB) in 2001.  The ADRB declined to hear the case as it was beyond that board’s 15-year statute of limitation.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel and provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A UD 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 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.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.  The applicant's service record fully supports both the reason for discharge and the characterization of his service.  The applicant has provided no evidence to the contrary.

3.  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

__KAK __  __MDM__  __TL____  DENY APPLICATION

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

INDEX

CASE ID	AR2001062563	
SUFFIX		
RECON	 	
DATE BOARDED	20020423 	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19700930	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.