MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 August 2003    
	DOCKET NUMBER:   AR2003086185

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones		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 discharge under other than honorable conditions (UOTHC) be changed to a medical discharge.

APPLICANT STATES:  That he had problems with his right foot tendon and sought medical treatment but they said nothing could be done.  He was unable to wear laced shoes.  He went absent without leave (AWOL) for 2 days and when he returned his commander said they would give him a medical discharge which was referred to as a "208."  His DD Form 214 (Report of Separation) indicated he received a medical discharge but he does not have a copy and the National Personnel Records Center says his files were burned in 1973.  He provides no supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire in 1973.  Information contained herein was obtained from reconstructed records.

The applicant enlisted in the Army National Guard on 24 May 1959.  He was ordered to active duty for training on 26 July 1959.

On 17 September 1959, the applicant was convicted by a special court-martial        of being AWOL from on or about 31 August to on or about 11 September 1959.     He was sentenced to be confined at hard labor for 6 months (suspended for             6 months) and to forfeit $52.00 pay for 6 months.

On 15 October 1959, the applicant was convicted by a special court-martial of being AWOL from on or about 19 September to on or about 6 October 1959.  He was sentenced to be confined at hard labor for months and to forfeit $52.00 pay for         6 months.

The applicant's discharge packet is not available.  His DD Form 214 is not available. A Certification of Military Service shows he was separated on 3 December 1959 with a discharge UOTHC.

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 for the discharge of individuals by reason of unfitness with a discharge UOTHC when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provisions which authorized a characterization of service of UOTHC.  

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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  If the applicant was told he would get a "208" discharge, the Board presumes his commander was referring to an administrative discharge, under the provisions of Army Regulation 635-208, for unfitness.  This type of discharge would be in accordance with his record of service as demonstrated by his two courts-martial for two periods of AWOL totaling about 30 days.  

3.  There is no evidence to show the applicant had a medical problem with his right foot.  In any case, since it appears he was processed for discharge for unfitness, which authorized a characterization of service of UOTHC, he was not eligible for physical disability processing.  

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

__tsk___  __wdp___  __fcj___  DENY APPLICATION

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

INDEX

CASE ID	AR2003086185	
SUFFIX		
RECON		
DATE BOARDED	20030812	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19591203	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.