MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 June 2002                  
	DOCKET NUMBER:   AR2002068728

	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	
	Mr. W. W. Osborn, Jr.  		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub 		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:  In effect, that his undesirable discharge be upgraded.

APPLICANT STATES;  In effect, that he could not adjust to the Army because a sergeant pushed him down some stairs.  He states that he is totally disabled by a bad back because of that incident.  He was told that the discharge would be automatically upgraded.  

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

He enlisted at the age of 20 years and 9 months with an 11th grade education, entered active duty on 10 February 1964 and never completed training.

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on 23 April 1964 for two periods (4 days and 7 days) of absence without leave (AWOL) and, on 20 July 1964, he was convicted by special court-martial of two specifications of AWOL (9 days and 36 days).

The report of medical history that he provided for his 5 August 1964 medical examination for separation made no mention of the alleged incident in which he was pushed down a stairs by a sergeant and no indication of back trouble.  He was found qualified for separation with a physical profile of 111211.  

On 17 August 1964 the applicant appeared, with counsel, before a board of officers that was convened to consider whether he should be retained in the service.  The board members considered the applicant's records, the testimony of a personnel records technician, that of a stockade guard who testified that the applicant did his work and caused no trouble in the stockade and that of the applicant, himself, who testified that he had no desire to return to duty, that he just did not care for the Army and that he had no particular reason for going AWOL.  He indicated that he understood the nature and significance of an undesirable discharge.  The board members found that the applicant 's record evidenced that his retention in the service was undesirable and recommended that he be separated for unfitness with an undesirable discharge.  The separation authority approved the recommendation and the applicant was discharged on 21 August 1964 under the provisions of Army Regulation 635-208 for unfitness,  as evidenced by frequent incidents of a discreditable nature with military or civil authorities.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to 

succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation precluded the setting of arbitrary standards, such as a certain number of trials by courts-martial, as a prerequisite to administrative elimination.  If examination by a medical officer or psychiatrist indicated the existence of a mental or physical disability that was the cause of unfitness, a board of medical officers was convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

The Army does not, nor has it ever had, a policy to automatically upgrade discharges.  When an applicant submits a request to change a discharge, each case is decided on its own merits.  Change may be warranted if the Board determines that the characterization of service or the reason for discharge was or both were in error or unjust.  Department of Defense Instruction 1332.28 (Standards for Discharge Review) specifically states that no factors should be established that require automatic change or denial of a change to any 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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2.  There is no evidence to substantiate the applicant's claim that his misconduct was due to abuse by a sergeant.  There is no evidence that he mentioned this incident at either his separation medical examination or at the hearing by the board of officers.

3.  There is no substantiating evidence to show that the applicant was informed by anyone in authority that his discharge would be automatically upgraded.  There is no provision for the automatic upgrading of any discharge and the applicant testified that he understood the nature and significance of an undesirable discharge.

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

__KAK__  ___MHM_  ___ALR__  DENY APPLICATION

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

INDEX

CASE ID	AR2002068728	
SUFFIX		
RECON		
DATE BOARDED	20020618	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-208 .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	A03.21	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.