MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 September 2002
DOCKET NUMBER:   AR2002068461

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:
	Ms. Celia L. Adolphi		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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.

APPLICANT STATES:  In effect, that while stationed at Fort Wainwright, Alaska he drove a soldier to a bar in a military truck; that the truck ran out of gas on the way back to base; and that he left the truck and returned to base to get gas for the truck.  When he returned, the truck had been hit and the guy who caught a ride with him was gone.  He states he was later arrested and locked up.  He also states that he was not advised of his rights as a serviceman and that the only reason he was discharged is because he is a black man.

In support of his application, he submitted a statement in his own behalf and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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

On 6 December 1961, he enlisted in the Regular Army for a period of 3 years and the Station of Choice Enlistment Option - Fort Wainwright, Alaska.  Following completion of all military training, the applicant was awarded military occupational specialty (MOS) 941.10, Cook, and was assigned to Fort Wainwright, where he served from 8 May 1962 thru 10 May 1963.

On 9 July 1962, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent from his place of duty, the company mess hall.  His punishment was 4 days' restriction without suspension of normal duties.

On 15 July 1962, the applicant accepted NJP for being AWOL from 0940 hours to 2300 hours.  His punishment was 14 days' restriction without suspension of normal duties.

On 6 September 1962, the applicant was found guilty by a summary court-martial of breaking restriction.  He was sentenced to 1 month's confinement at hard labor, reduction to private/E-1, and forfeiture of $62.00 pay for 1 month.  On 12 September 1962, the sentence was approved as adjudged and ordered executed, except that the forfeiture of $62.00 pay was modified to $55.00 pay for 1 month.  On 25 September 1962, the confinement at hard labor portion of the sentence was suspended for 30 days.  Also on that day, the applicant's MOS was changed from MOS 941.10, Cook, to MOS 120.00, Pioneer.

On 11 October 1962, the suspended portion of the applicant's 6 September 1962 sentence -- confinement at hard labor -- was vacated and he was confined in the Post Confinement Facility, Fort Wainwright.

On 3 November 1962, the applicant accepted NJP for dereliction of guard duty.  His punishment was 14 days' restriction without suspension of normal duties.

On 4 February 1963, a psychiatric exam found the applicant to be free from mental defect, disease, or derangement, and to possess the mental capacity to know right from wrong.

On 6 February 1963, the applicant was found guilty by a summary court-martial of leaving his sentinel post prior to being officially relieved of his duty.  He was sentenced to confinement at hard labor for 1 month (suspended for 2 months) and forfeiture of $55.00 pay for 1 month.  On 11 February 1963, the sentence was approved as adjudged and ordered executed, except for the confinement at hard labor for 1 month.

On 1 March 1963, the unexecuted portion of the applicant's sentence to confinement at hard labor for 1 month, adjudged on 11 February 1963 and not subsequently modified, which suspended the sentence to confinement for 1 month, was vacated.  He was confined from 1-21 March 1963.

On 5 March 1963, the applicant's unit commander requested that he be discharged under the provisions of Army Regulation 635-208 for unfitness with a UD.  The commander's specific reasons for recommending the applicant for separation were his frequent incidents of a discreditable nature with military authorities.

On 6 April 1963, after being counseled by his commanding officer, the applicant authenticated a statement with his signature in which he acknowledged notification of his commander's intent, declined representation by legal counsel, declined a hearing before a board of officers, and declined to submit a statement in his own behalf.

On 25 April 1963, the appropriate authority approved the recommendation for discharge with a UD.  Accordingly, on 15 May 1963, the applicant was discharged from the Army after completing 1 year, 4 months, and 17 days of creditable military service and accruing 21 days of lost time.

Army Regulation 635-208, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals discharged under this regulation would normally be issued a UD.

On 22 December 1971, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  On 5 September 1979, the ADRB again denied the applicant's request to upgrade his discharge.

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 record does not support the applicant's contention that his separation was the result of an incident with a truck.  His separation was the result of numerous other incidents of misconduct which led to his being declared unfit for continued service.

2.  The Board found no evidence that the applicant's rights were violated or that he was a victim of racial prejudice.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected during his tour of duty and throughout the separation process.  

3.  The evidence of record indicates the command attempted to assist the applicant in performing and conducting himself according to Army standards by providing him counseling, nonjudicial punishment, and two summary courts-martial.  The applicant failed to respond appropriately to these efforts.  The applicant by continuing his pattern of misconduct and poor duty performance left his commanding officer no choice but to initiate separation action.  

4.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

5.  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.

6.  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

__cla___  __mhm___  __jtm___  DENY APPLICATION

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

INDEX
CASE ID	AR2002068461	
SUFFIX		
RECON		
DATE BOARDED	20020905	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19630515	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.	144.9315	
3.		
4.		
5.		
6.