MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 August 2003
	DOCKET NUMBER:   AR2003085636

	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. Luis Almodova		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Harry B. Oberg		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 a general (under honorable) discharge or to an honorable discharge.

The applicant did not submit a statement, an argument, or a justification for the upgrade of his undesirable discharge.

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

The applicant enlisted in the Regular Army for a period of 3 years on 13 May 1968.  He successfully completed basic combat training at Fort Benning, Georgia.  He was assigned to Fort Gordon, Georgia, to undergo advanced individual training (AIT) in Army Career Group 31, Field Communications Equipment Maintenance.

While in AIT, the applicant absented himself without proper authority on 13 August and remained absent until 19 August 1968.  On 25 August 1968, the applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for this absence.  The imposed punishment was a forfeiture of $34.00 per month for two months, restriction to the company area for 45 days, and 45 days extra duty.

On 20 November 1968, the applicant was referred to and was evaluated at the Mental Hygiene Consultation Service at Fort Gordon, Georgia.  The evaluation was requested because of impending court-martial action.  In this evaluation, the applicant was found to be, "an immature individual who is having difficulty adjusting to the Army.  Specific conflicts center around negative feelings towards authority.  Rehabilitation potential is fair with individual counseling by a social work technician."  This evaluation also revealed no evidence of any mental condition, which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  The applicant was found to be capable of distinguishing right from wrong and adhering to the right.  He possessed sufficient mental capacity to act in his own behalf in administrative procedures deemed necessary by command.

On 27 November 1968, the applicant was convicted by a special court-martial of absenting himself without proper authority on 3 September until about 8 October 1968 and 19 October to 16 November 1968.  He was sentenced to be confined at hard labor for 6 months and to forfeit $46.00 per month for 6 months.  The sentence was approved and ordered executed on the same date; but, that part of the sentence adjudging confinement at hard labor for 6 month was suspended for 6 months.

On 10 December 1968, a DA Form 268, Report of Suspension of Favorable Personnel Actions, was prepared.  The basis for suspension of favorable personnel actions was the command's initiation of separation action under the provisions of Army Regulation (AR) 635-212.

On 10 December 1968, his commander advised the applicant that he was recommending that he [the applicant] be discharged from the Army before the expiration of his term of service under the provisions of AR 635-212, for unfitness.

On 11 December 1968, the applicant was advised by counsel that proceedings to discharge him from the Army, under the provisions of AR 635-212, for unfitness, were being contemplated.  The applicant acknowledged the contemplated action on the same date and waived consideration of his case by and a personal appearance before a board of officers.  The applicant elected not to make a statement but acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued him.  The applicant also understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

On 12 December 1968, the applicant's commanding officer recommended that the applicant be discharged from the Army prior to the expiration of his current period of service under the provisions of AR 635-212, by reason of unfitness.  Elimination was recommended because of his repeated infractions of military rules and regulations with apparent failure to profit from military discipline.  The applicant had been formally counseled on 18, 22, and 26 November and 2 December 1968, according to the recommendation for administrative elimination action.  His conduct and efficiency rating were both unsatisfactory.  The commander recommended that further rehabilitation and counseling be waived.

The applicant's chain of command was unanimous in recommending approval of the action and in recommending that the applicant be discharged with an undesirable discharge.

On 20 December 1968, the appropriate authority, a major general, approved the applicant's discharge and directed that an undesirable discharge be issued.

The applicant was discharged on 27 December 1968, with an undesirable discharge, characterized as under other than honorable conditions, in the rank 

and pay grade, Private, E-1, after completing 5 months, and 6 days creditable active military service.  On the date of his discharge, the applicant had accrued 70 days of lost time due to AWOL.

AR 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a of the regulation 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 undesirable discharge was normally considered appropriate.

AR 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Paragraph 3-7, in the above cited regulation, also provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable 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.  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 the above requirement.

2.  The applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation.

3.  The Board noted that the applicant was diagnosed by a psychiatrist and was found to be, "an immature individual who is having difficulty adjusting to the Army with specific conflicts which center around negative feelings towards authority.  This evaluation also revealed no evidence of any mental condition, which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  The applicant was found to be capable of distinguishing right from wrong and adhering to the right.  He possessed sufficient mental capacity to 

act in his own behalf in administrative procedures deemed necessary by command.

4.  The Board further noted that despite the examining psychiatrist's opinion that the applicant's rehabilitation potential was fair, with individual counseling by a social work technician, the applicant's commander recommended that further counseling and rehabilitation efforts be waived.

5.  The Board carefully reviewed the applicant’s record of service.  The character of the discharge is commensurate with the applicant's overall record of military service.

6.  The record shows that during his service time, the applicant accepted NJP on one occasion and was convicted by a special court-martial in the span of just over six months from the date of his enlistment in the Army.  In view of these instances of misconduct, an undesirable discharge does not appear to be unduly harsh.

7.  The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  Through his misconduct, the applicant diminished the quality of his service below that meriting an upgrade of his undesirable discharge to either an general (under honorable) or a fully honorable discharge.

8.  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

___hbo__  __tl_____  __ao____  DENY APPLICATION

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

INDEX

CASE ID	AR2003085636	
SUFFIX		
RECON		
DATE BOARDED	2003/08/28	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/12/27	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360 	144.0000	
2.  583 	144.5000/ A51.00	
3.		
4.		
5.		
6.