MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 December 2002                   
	DOCKET NUMBER:   AR2002074235

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Charmane Collins		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 AR 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 served honorably for more than 3 years; that he received a court-martial and he was discharged for what he believes to have been a minor offense, specifically "being in an area that was off limits;" that he did not understand the court-martial proceedings; that he was unable to assist or defend himself due to the lack of knowledge of the English language.  He adds that he has been trying to get his discharge upgraded since 1951, but without success.  

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

That prior to the period of service under review, he served honorably in the Regular Army (RA) from 20 March 1946 to 5 December 1946.  On 6 December 1946, he reenlisted in the RA for 3 years.  On 17 February 1947, he was assigned to Company M, 65th Infantry Regiment, Puerto Rico.

On 19 September 1947, the applicant was convicted by a special court-martial of striking a military police noncommissioned officer (NCO) in the face while the NCO was in the performance of his duties, and of willfully disobeying a lawful order of an NCO on 14 August 1947.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $35.00 pay per month for 6 months.  

On 25 April 1948, the applicant was assigned to Fort Clayton, Canal Zone.  On 31 July 1948, the applicant was convicted by a summary court-martial of appearing in Panama City, Republic of Panama, without the proper written authority and in improper attire (civilian clothing).  He was sentenced to confinement at hard labor for 10 days and forfeiture of $30.00 pay.

On 8 July 1949, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice, for being in an off limits area.  His punishment included confinement at hard labor for 7 days. The NJP proceedings are no longer contained in the available record.

On an unknown date, while assigned to Fort Clayton, the applicant was notified that a board of officers would meet on 8 September 1949 to determine whether he should be separated from the Army prior to the expiration of his term of service under the provisions of Army Regulation (AR) 615-368 for unfitness or unsuitability.  

On 8 September 1949, the applicant appeared before a board of officers with counsel.  After reviewing the applicant's service record and hearing testimony from his chain of command, the board recommended that the applicant be 

separated for unfitness and unsuitability under the provisions of AR 615-368.  On 17 October 1949, the approving authority accepted the recommendation and directed that the applicant receive a UD.

On 26 October 1949, the applicant was separated with a UD under the provisions of AR 615-368 for unfitness and unsuitability.  He had completed 2 years, 10 months, and 20 days of creditable active Federal service on the enlistment under review and he had lost time due to being in confinement.  The applicant had also completed 8 months and 16 days of prior honorable service.  

On 23 August 1965, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge after a records review.  On 27 April 1982, the ADRB again denied the applicant's request for an upgrade of his discharge after he personally appeared before that board.

AR 615-368, in effect at the time set forth the basic policy and guidance for the prompt elimination of enlisted personnel.  The regulation provided, in pertinent part, for the separation of individuals determined to be unfit for further service by reason of habits or traits of character manifested by misconduct.  Under this regulation a UD was 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights.  The type of discharge was appropriate considering the facts of the case.

3.  The applicant has provided no evidence to indicate that the English language was an obstacle for him during the period in which he served.  If language was a barrier, it was his responsibility to bring it to the attention of his chain of command prior to the separation process and to the attention of his legal representative during the separation process.  

4.  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

__fne___  __jea___  ___cc___  DENY APPLICATION

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

INDEX

CASE ID	AR2002074235	
SUFFIX		
RECON		
DATE BOARDED	20021203	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19491026	
DISCHARGE AUTHORITY	AR615-368	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.