MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           28 October 2003                   
		DOCKET NUMBER:  AR2003090084

	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. Raymond J. Wagner		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Marla J. Troup		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 honorable.

APPLICANT STATES:  That he enlisted in the Army.  His mother was a diabetic and was real sick.  He was trying very hard to deal with her sickness and kept a lot inside him.  In his mind, running away took away her being sick.  Then she died, and his running away made it seem like his mother's death would be washed away.  He still had problems dealing with her death after his discharge.  As supporting evidence he provides a statement from his wife.

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

After receiving a moral waiver (malicious destruction of property – dropped small stones from overpass and broke the windshield of a vehicle on 7 August 1967), he enlisted in the Regular Army on 17 October 1967.

On 26 February 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 26 February 1968 to on or about 15 March 1968.

On 16 June 1969, the applicant accepted NJP under Article 15, UCMJ for failing to obey a lawful order to return a fan he took from the mess hall.

On 4 August 1970, the applicant was convicted by a special court-martial of four specifications of AWOL (from 29 December 1969 to on or about 15 February 1970, from 9 March 1970 to on or about 16 March 1970, from 23 March 1970 to on or about 23 April 1970, and from 23 April 1970 to on or about 17 July 1970).  He was sentenced to confinement at hard labor for 3 months.

On 18 March 1971, the applicant underwent a psychiatric evaluation.  No evidence of any mental or physical defects sufficient to warrant disposition through medical channels was found.  He was not found to manifest a psychosis or neurosis.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

On 25 March 1971, the commander of the 12th Correctional Training Unit, 3d Correctional Training Battalion, U. S. Army Correctional Training Facility, Fort Riley, KS initiated action to separate the applicant under Army Regulation      635-212 for unfitness.  The commander noted that the applicant had been sent to that facility for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained soldier with improved attitude and motivation.  The applicant was returned to duty but since then had been AWOL for 28 days.  

The applicant was advised by counsel of the basis for the contemplated separation and its effect and the rights available to him.  He waived consideration of his case by a board of officers; waived personal appearance before such a board; elected not to make a statement on his behalf; and waived representation by counsel.

On 29 March 1971, the appropriate authority approved the recommendation and directed issuance of an Undesirable Discharge Certificate.

On 1 April 1971, the applicant was discharged, with an undesirable discharge, in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness.  He had completed 2 years, 7 months, and 17 days of creditable active service and had 298 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unfitness or unsuitability.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was unlikely to succeed.

Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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.  A general discharge is a separation from the Army under honorable conditions.  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 this requirement.

2.  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.  

3.  The evidence of record shows the applicant had a civilian record of misconduct prior to his enlistment.  He had the opportunity to make a statement in his own behalf at the time of his discharge which could have offered his mother's illness and death as mitigating circumstances but he failed to do so.  There is insufficient evidence on which to base an upgrade of his discharge to either fully honorable or general under honorable conditions.

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

__rjw___  __lds___  __mjt___  DENY APPLICATION

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

INDEX

CASE ID	AR2003090084	
SUFFIX		
RECON		
DATE BOARDED	20031028	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710401	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.