MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 April 2002      
	DOCKET NUMBER:   AR2002067589

	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. 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 be upgraded to general.  

APPLICANT STATES:  That he was young and unsettled with many personal problems.  He contends that he was not a deserter or draft dodger, that he loves his God and country and asks for the Board’s mercy on this matter. 

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

The applicant was inducted in the Army of the United States on 7 November 1967 and honorably discharged on 13 November 1967 for immediate reenlistment.  He reenlisted on 14 November 1967 for a period of 3 years.  

On 20 May 1968, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 16 May 1968 to 20 May 1968.  His punishment consisted of a forfeiture of pay and extra duty.

On 28 August 1968, the applicant was convicted by a special court-martial of being AWOL from 1 June 1968 to 22 August 1968.  He was sentenced to be confined at hard labor for 6 months, to forfeit $72 per month for 6 months and to be reduced to E-1.  On 29 August 1968, the convening authority approved the sentence but suspended the portion adjudging confinement at hard labor for 
6 months.  

On 14 March 1969, the suspended portion of the sentence to confinement was vacated.  

On 20 March 1969, the applicant was convicted by a special court-martial of being AWOL from 30 August 1968 to 27 February 1969.  He was sentenced to be confined at hard labor for 6 months and to forfeit $70 pay per month for 
6 months.  On 24 March 1969, the convening authority approved the sentence.  

On 21 March 1969, the applicant underwent a psychiatric evaluation and was cleared for any administrative action deemed necessary by his command. 

On 27 March 1969, the applicant underwent a separation physical examination and was found to be qualified for separation with a physical profile of 111111.  

On 3 April 1969, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 for unfitness.  

On 3 April 1969, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf. 

On 4 April 1969, the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with military authorities.  The unit commander recommended separation with an undesirable discharge.

The intermediate commander concurred with the recommendation for separation.

On 14 April 1969, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.   
On 18 April 1969, the unexecuted portions of the sentences to confinement at hard labor for 6 months adjudged on 28 August 1968 and on 20 March 1969, were remitted.

Accordingly, the applicant was discharged on 18 April 1969 with an undesirable  discharge under the provisions of Army Regulation 635-212, for unfitness due to frequent incidents of discreditable nature with civil or military authorities.  He had served 6 months and 24 days of total active service with 323 days lost due to AWOL.

There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 
    
Army Regulation 635-212, in effect at the time, set for the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation 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.  An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 considered the applicant’s contention that he was young and unsettled with many personal problems.  However, these matters are not grounds for upgrading a discharge.
2.  His contentions that he was not a deserter or draft dodger were also noted by the Board.

3.  The Board reviewed the applicant’s record of service which included one nonjudicial punishment, two special court-martial convictions and 323 days lost time and determined that his record of service was not satisfactory.  Therefore, the applicant is not entitled to a general discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

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

6.  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.

7.  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	AR2002067589	
SUFFIX		
RECON		
DATE BOARDED	20020423	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19690418	
DISCHARGE AUTHORITY	AR 635-212  	
DISCHARGE REASON	Unfitness due to frequent incidents of discreditable nature with civil or military authorities	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.