MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           28 AUGUST 2003                   
	DOCKET NUMBER:   AR2003088024

	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. Kenneth H. Aucockl		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 discharge under other than honorable conditions be upgraded to general or honorable.  

APPLICANT STATES:  He went AWOL (absent without leave) because his mother's home burned.  He had two sisters and his family was on welfare.  He was not granted emergency leave.  When he returned from AWOL he was given six months in the stockade.  He was a dumb youngster.  He went back to the stockade again and was kicked out of the Army.  Since then, he has been a good person and has worked hard all of his life.  He has a permanent disability and has had four operations on his back.  He is on Medicare, has no insurance, and no outlook for the future.  If things had not worked out the way they did, he would have become a career soldier.  He is 61 years old and may need medical help in the future.  He has paid for his past misconduct.  He was given a raw deal in the beginning; however, he was to blame and is sorry.  

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

The applicant entered on active duty on 10 February 1959 at age 17, and was assigned to Fort Knox, Kentucky for training.  On 28 April 1959, before a special court-martial which convened at Fort Knox, the applicant was arraigned, tried, and pled guilty to wrongfully and knowingly depositing in the unit mail box an envelope with obscene matter written on it.  He was sentenced to forfeit $52.00 per month for three months.  The applicant completed basic training and in June 1959 was assigned to Fort Belvoir, Virginia for advanced training.  

On 8 February 1960, before a special court-martial which convened at Fort Leonard Wood, Missouri, the applicant was arraigned, tried, and pled guilty to AWOL from 24 September 1959 to 21 December 1959.  He was sentenced to be confined at hard labor for six months.  The applicant's DA Form 24 (Service Record) shows that he was in confinement for 131 days from 21 December 1959 to 29 April 1960. 

A 24 March 1960 psychiatric examination report indicates that the applicant had no psychiatric disease, that he was mentally responsible, and able to distinguish right from wrong and adhere to the right.  The examining psychiatrist stated that the applicant related that he had no desire to serve in the Army and was quite apparently "shopping" for a discharge.  He stated that the applicant related in a logical and coherent fashion, that he was relatively anxiety-free and talked in a glib manner, using many rationalizations and much justification.  He had little sense of loyalty, obligation, and seemed to have no feelings of guilt or remorse for his actions or attitude.  He stated that he had no mental defect or derangement which would warrant separation through medical channels.  He stated that his difficulties seemed to be almost entirely those on a conscious and volitional level.  He stated that the applicant had a record of failure in school work and in the Army.  The psychiatrist stated that the applicant was felt to be non- restorable for military service.  He recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for undesirability. 

A 10 August 1960 report of psychiatric evaluation report indicates that the applicant stated that he went AWOL to get out of the Army, and that he would go AWOL again if he was reassigned.  The report indicates that the applicant stated that he would not stay around long enough so that an attempt at rehabilitation could be made.  The examining physiatrist stated that the applicant had no disqualifying mental or physical defects to warrant disposition through medical channels.  He stated that the applicant was mentally responsible; able to distinguish right from wrong and adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.  He recommended that the applicant be eliminated from the Army.  

A 15 August 1960 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history that he furnished for the examination, the applicant stated that his health was good.

On 17 August 1960 the applicant stated that he had been advised by his commander that he was recommending that he be discharged for unfitness and that he had been counseled on the basis for the recommended action.  He declined military counsel and waived his right to a hearing by a board of officers. He declined to submit statements in his own behalf.  He stated that he understood the nature and consequences of the Undesirable Discharge that he might receive.

On 23 August 1960, before a special court-martial which convened at Fort Knox, the applicant was arraigned, tried, and pled guilty to AWOL from 4 May 1960 to 21 July 1960.  He was sentenced to be confined at hard labor for six months.  His DA Form 24 shows that he was confined from 22 July 1960 to                            29 September 1960. 

On 1 September 1960 the applicant's commanding officer recommended that the applicant be eliminated from the Army for unfitness under the provisions of Army Regulation 635-208.  There is no record of the separation authority approving that recommendation.

On 18 September 1960 the unexecuted portion of the applicant's sentence to confinement at hard labor was remitted effective the date of his administrative discharge.

The applicant was discharged on 30 September 1960 under the provisions of Army Regulation 635-208.  He had 7 months and 19 days of service, and 368 days of lost time.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  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.  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. The character of the discharge is commensurate with his overall record.

2.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all post service benefits.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

3.  The Board has taken cognizance of the applicant's profession of good post service conduct, and his statements concerning his medical condition.  While the Board is empathetic, these are not sufficiently mitigating to warrant an upgrade of his discharge. 

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 that requirement.

6.  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

__AAO__  __TL____  __HBO __  DENY APPLICATION

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

INDEX

CASE ID	AR2003088024	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030828	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.