MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           30 April 2002
	DOCKET NUMBER:   AR2002070261

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Thomas E. O'Shaughnessy		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:  That he did not get along with a couple of sergeants in his unit.  He claims that a sergeant punched him and no one did anything about it.  With 2 months left before his term of service expired, his company commander asked whether he’d like to get out of the Army immediately.  Because he was a “dumb kid,” he took the discharge without realizing the type of characterization he would receive.  He regrets not having stayed to finish his term of service.

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

He was born on 29 February 1944 and enlisted in the Regular Army for 3 years on 31 May 1961.  Following completion of all required military training, he was assigned to a field artillery unit in Germany, with duty as a field communications crewman.

The applicant’s first assignment in Germany was with Headquarters Battery, 36th Artillery Group.  While assigned to this unit, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three separate occasions.  On 29 July 1963, he was reduced to private (PV2/E-2) and given 14 days’ extra duty for failing to report for duty.  On 20 August 1963, he was made to forfeit $15.00 and perform 14 days’ extra duty for being absent from his unit for 3 hours.  On 19 September 1963, he received an oral reprimand for being absent from his unit for 6 hours.

On 20 September 1963, the applicant was given a rehabilitative transfer to A Battery, 3rd Gun Battalion, 82nd Artillery.  Although his performance of duty is not a matter of record in this unit, his tenure was short-lived before he was once again given a rehabilitative transfer on 9 December 1963, this time to Headquarters and Service Battery, 3rd Missile Battalion, 79th Artillery.

On 12 February 1964, the applicant accepted NJP for being absent from his place of duty from 2400 hours 9 February 1964 to 2100 hours, 10 February 1964. As punishment, he was made to forfeit $25.00 per month for 1 month.

The applicant was also convicted by two summary courts-martial on 24 February 1964 and on 9 March 1964.  Both courts-martial were for periods of absence without leave (AWOL) from 16-18 February 1964 and 7-9 March 1964.  As punishment, he was sentenced to hard labor without confinement for 1 month and forfeiture of $55.00, and confinement at hard labor for 1 month and forfeiture of $50.00.

The applicant’s commander initiated action to eliminate the applicant for unfitness under the provisions of Army Regulation (AR) 635-208.  On 16 March 1964, he was given a psychiatric evaluation that found him to be free of disease, and able to distinguish right from wrong and adhere to the right.  The psychiatrist, however, did not recommend administrative separation action against the applicant believing that he could successfully complete his final 2-3 months of service.

On 17 March 1964, the applicant was notified that he was being processed for elimination for unfitness.  He acknowledged notification, declined to consult with legal counsel, waived a hearing of his case before a board of officers, and did not make a statement in his own behalf.  On 28 March 1964, the administrative separation action was forwarded to the approving authority along with 18 enclosures, including numerous statements from soldiers in the applicant’s chain of command which all described the applicant as a duty shirker and a disciplinary problem.

On 30 March 1964, the approving authority directed that the applicant be reduced to the rank of private (PVT/E-1) and separated with a UD under the provisions of AR 635-208 for unfitness.  The applicant was returned to the United States and separated at Fort Hamilton, New York, on 16 April 1964 with a UD.  He had 2 years, 9 months, and 19 days of creditable service and 28 days of lost time due to AWOL and confinement.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 1 May 1975, denied his request.

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided, in pertinent part, that members found to be unfit for further military service, and without rehabilitative potential, would be separated.  An undesirable discharge 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 exhibited tendencies and traits that made him unfit for military service.  He received numerous NJPs and two summary courts-martial; he also was given two rehabilitative transfers in order to give him fresh starts so that he might complete his enlistment in an honorable manner.  The applicant never corrected his behavior and conduct and his chain of command was left with only one alternative -- administrative separation.

3.  The applicant was informed of the nature of the separation action be taken and of the type of discharge that he would receive.

4.  The applicant’s overall record of service does not warrant an upgrade in the characterization of his service.

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

___teo___  ___hof__  ___aao__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070261	
SUFFIX		
RECON		
DATE BOARDED	20020430	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19640416	
DISCHARGE AUTHORITY	AR 635-208  	
DISCHARGE REASON	A50.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.