MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 July 2003
	DOCKET NUMBER:   AR2003086021

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Gail J. Wire		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Robert Duecaster		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 be upgraded to an honorable or a general discharge.

APPLICANT STATES:  In effect, that he was experiencing family problems while he was in the Army.

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

He was inducted into the Army at Fort Dix, New Jersey, on 10 October 1966.

Nonjudicial punishment (NJP) was imposed against the applicant on 6 December 1966, for failure to obey a lawful order.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 17 January 1967, NJP was imposed against the applicant for being absent from the mess hall for 16 hours.  His sentence consisted of a forfeiture of pay, restriction and extra duty.

He had NJP imposed against him again on 28 January 1967, for being absent from his unit from 21 January until 22 January 1967.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 7 March 1967, he was convicted by a summary court-martial of being absent without leave (AWOL) from 5 February until 20 February 1967 and breaking restriction.  He was sentenced to a forfeiture of pay and restriction.

The applicant was placed on a physical profile on 5 April 1967.  He was diagnosed as having exophoria tropia, convergence insufficiency with secondary diplopia.  He was found to be qualified for military duty with assignment limitations, which included no firing of, weapons, no driving military vehicles, no duty requiring fine vision and no duty hazardous to the eyes.

On 11 May 1967, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unfitness.  His commanding officer cited his lack of desire to train and his inability to adapt to Army life as a basis for the recommendation for discharge.  His commander stated that he had been in the Army for 5 months and that he had completed only four weeks of training and had been recycled a total of five times.  He acknowledged receipt of the notification on 5 June 1967 and, after consulting with counsel he waived his rights and he opted not to submit a statement in his own behalf.

On 22 May 1967, the applicant was counseled by his first sergeant for being very disrespectful to the company clerk and for refusing to go to training on two separate occasions.  The counseling form indicates that after he refused to go to training he asked to see the Inspector General.  His first sergeant made an appointment for him see the executive officer.  

On the same day, statements were obtained from the applicant’s former commanders detailing the number of times that applicant had been recycled to different companies.  One of his former commanders stated that he had been recycled to his unit on 14 November 1966 from a different company and that he was immediately recognized as a problem soldier.  His former CO stated that he began to complain of back trouble and to go on sick call almost daily and that he was seen by different doctors and was always returned to duty status.  His former CO stated that the applicant had been counseled by the previous company commander on several occasions; however, it proved to no avail as he had missed so much training that he was recycled on 16 December 1966.

Another former company commander submitted a statement attesting to the fact that the applicant had to be recycled and that he would repeatedly go to sick call and miss training.  The former CO stated that he had counseled him on two separate occasions regarding the medical treatment that he was receiving, his conduct and bearing as a soldier, his alleged physical disability and his desire to train in the unit in an attempt to successfully complete basic combat training.  The former CO further stated that on both occasions the applicant indicated no desire to train, displayed a negative attitude and indicated his desire to be released from the Army.  His former CO went on to state that having considered his attitude, performance, medical reports authenticated by more than one physician, and having seen him walk normally for several steps at a time when he thought he was not being observed, he had concluded that his entire situation was a fraud constructed by himself in an attempt to be released from active duty. His former CO concluded by stating he advised the applicant of his conclusions during his counseling sessions; however, he did not respond to the counseling and was recycled again.

The appropriate authority approved the recommendation for discharge on 16 June 1967.  Accordingly, on 26 June 1967, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness.  He had completed on 8 months of total active service and he had 16 days of lost time due to AWOL.  He was furnished an Undesirable Discharge Certificate.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) 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.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The Board has noted the applicant’s contentions.  However, they are unsupported by the evidence of record.  The evidence of record clearly shows that the applicant had no desire to be in the Army.  He was counseled on numerous occasions regarding his lack of desire to train.  He was recycled five times, he had NJP imposed against him three times and he was convicted by a summary court-martial as a result of his acts of indiscipline.  The discharge process was in accordance with applicable law and regulations and the applicant's service is appropriately characterized.

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

___rd ___  ___kh___  __gw____  DENY APPLICATION

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

INDEX

CASE ID	AR2003086021	
SUFFIX		
RECON		
DATE BOARDED	2003/07/31	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1967/06/26	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	583	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  592	144.5100	
2.		
3.		
4.		
5.		
6.