MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 September 2003
	DOCKET NUMBER:   AR2003088278

	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:

	Mr. Stanley Kelley		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. John T. Meixell		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 be upgraded to a general discharge.

APPLICANT STATES:  That he failed to receive adequate counsel and that he was encouraged to sign a waiver of his rights and to discontinue rehabilitation, which would have allowed him to stay in the Army.

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

On 29 July 1961, he enlisted in the Army for 3 years in the pay grade of E-1.

The applicant was still in training when he was convicted by a special 
court-martial on 15 November 1961, of willfully disobeying a lawful order of an officer, failure to obey a lawful order of a noncommissioned officer and of being incapacitated for duty.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay in the amount of $52.00 per month for 6 months. 

On 21 December 1961, the applicant was examined by a neuropsychiatrist and he was diagnosed as having a antisocial personality, chronic, moderate; manifested by a lack of loyalty to any other persons and of repeated failure to conform to rules and regulations.  The neuropsychiatrist stated that while he was in the stockade, he made different claims of abnormal behavior, to include exhibitionism and homosexual activities; however, it was difficult to prove or disprove his claims.  The neuropsychiatrist further stated that after the applicant was court-martialed and placed in the stockade for excessive drinking, disobeying orders, breaking restriction and being absent without leave, he attempted to manipulate various people to get him out and that he even cut his wrist superficially on one occasion.  The neuropsychiatrist opined that he was not insane; that he possessed sufficient mental capacity to know the difference between right and wrong and was able to adhere to the right; and that he had the mental capacity to understand and participate in board proceedings.  He further opined that the applicant was not amenable to hospitalization, treatment, disciplinary action, training, transfer to another station or organization, or reclassification.  The neuropsychiatrist recommended that no further attempt to rehabilitate him be made and that he be placed before a board of officers with a view of separation from the service.

On 25 January 1962, the applicant was convicted by a special court-martial of escape from lawful confinement in the post stockade.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay in the amount of $52.00 per month for 6 months.

On 13 February 1962, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-208, for unfitness, based on frequent incidents of a discreditable nature with military authorities.  He acknowledged receipt of the notification and he waived his right to consult with counsel and to a hearing before the board of officers.

The appropriate authority approved the recommendation for discharge on 23 February 1962.  Accordingly, on 5 March 1962, the applicant was discharged under the provisions of Army Regulation 635-208, for unfitness, based on frequent incidents of a discreditable nature with military authorities.  He had completed on 3 months and 17 days of total active service.  He was furnished an Undesirable Discharge Certificate.

On 29 March 1976, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-208, then in effect, provided for the separation of personnel for unfitness.  Paragraph 10b(3) provides that separation action by the commander exercising general court-martial jurisdiction prior to board action may direct discharge because of unfitness of an individual who has waived hearing by a board of officers.

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.  His records clearly show that he was afforded the opportunity to consult with counsel and to appear before a board of officers along with counsel and he waived his right to do so.  

4.  It appears that he had no desire to remain in the Army as evidenced by his disregard for military authority his numerous acts of misconduct and his undesirable discharge appropriately reflects his overall record of service.

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 this 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

__cjp____  ___sk___  __jm____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088278	
SUFFIX		
RECON		
DATE BOARDED	2003/09/11	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1962/03/05	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	583/UNFITNESS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  592	144.5100/FREQUENT INCIDENTS	
2.		
3.		
4.		
5.		
6.