MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 July 2002
	DOCKET NUMBER:   AR2002073902

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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 (UD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that his discharge was too harsh for the minor offenses that caused it, which were that he missed bed checks a few times.  

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

On 1 April 1959, he enlisted in the Army for 3 years.  He successfully completed basic training at Fort Jackson, South Carolina, and he qualified in and was awarded military occupational specialty (MOS) 131.00 (Tank Crewman).  

The applicant’s Service Record (DA Form 24) documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history.  

His Unit Punishment Record (DD Form 789) shows that he received unit punishment on the following dates for the offenses indicated:  6 June 1960, for being absent without leave (AWOL); 1 July 1960, for illegal possession of fire crackers; 23 July 1960, for disorderly conduct while on pass; and 16 September 1960, for misconduct.  

A Record of Court-Martial Conviction (DA Form 26) on file confirms that the applicant was convicted by a summary court-martial on the following three separate dates for the offenses indicated:  29 October 1959, for stealing one pair of shoes valued at $5.60; 1 April 1960, for AWOL, failure to obey a lawful order, and disorderly in a public place; and 30 April 1960, for AWOL and wrongfully using an official pass with the intent to deceive.  

On 21 November 1960, the applicant signed a statement confirming that he had been counseled and advised of the basis for the action of his unit commander recommending that he be discharged prior to his normal expiration of term of service (ETS) under the provisions of Army Regulation 635-208.  He further acknowledged that he had been informed of his right to have individual counsel represent him at a hearing, and he waived that right.  He also indicated that he elected to waive his right to a hearing by a board of officers, and that he understood that he could be administratively discharged without a hearing as a result of this waiver.  Finally, he elected not to submit a statement in his own behalf.  

On 1 December 1960, the applicant’s unit commander submitted a request that the applicant be eliminated from service under the provisions of Army Regulation 635-208.  The unit commander stated that the reasons for his taking the action were the applicant’s off duty conduct and frequent discreditable civil offenses, his lack of maturity and adjustability, and his belligerent attitude toward all counseling and rehabilitative measures. 

On 13 December 1960, the separation authority approved the separation action and directed that the applicant receive an UD, and that he be reduced to the lowest enlisted grade.  

On 7 January 1961, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to and authenticated by the applicant on the date of his separation confirms that he was separated under the provisions of Army Regulation 635-208, by reason of unfitness.  At the time of his separation, he had completed a total of 1 year, 9 months, and 5 days of creditable active military service, and he had accrued a total of 2 days of time lost due to AWOL.

There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade to his discharge within its 15 year statute of limitations. 

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It 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 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.  The Board notes the applicant’s contention that his discharge was too harsh given the minor nature of his misconduct, but it finds insufficient evidence to support this claim.  

2.  The evidence of record shows the applicant was separated for unfitness based on an extensive history of misconduct that included offenses that resulted in his receiving unit punishment on four separate occasions and in his conviction by a summary court-martial on three separate occasions.  The Board also notes that the applicant voluntarily waived his right to a hearing before a board of officers and his right to counsel.  

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it finds that the character of the applicant’s discharge accurately reflects his overall record of service.  Therefore, the Board concludes that the requested relief is not warranted in this case. 

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

__RVO__  __RTD__  __KWL__  DENY APPLICATION

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

INDEX

CASE ID	AR2002073902	
SUFFIX		
RECON		
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1961/01/07	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.  360	144.0000	
3.		
4.		
5.		
6.