MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:             17 July 2003                 
	DOCKET NUMBER:     AR2003090107

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Regan K. Smith		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 the undesirable discharge (UD) of her deceased husband, a former service member (FSM), be upgraded.  

APPLICANT STATES:  In effect, that the FSM was 18 years of age at the time of his discharge, and he waived his right to counsel or to receive help in understanding the ramifications of accepting the discharge.  She claims that although two of his supervisors indicated that he did not want to be in the Army and that he was absent from work on numerous occasions, his separation document (DD Form 214) shows no lost time due to being absent without leave (AWOL).  She also states that it is her belief that had the FSM received proper counseling, his ability and potential would have been revealed.  She further indicates that the FSM’s problems in the service could be attributed to his lack of maturity because subsequent to his discharge, he worked for 25 years, and he was married and raised three children, one of which is currently a sergeant in the Army.  

EVIDENCE OF RECORD:  The FSM’s military records show:

On 13 May 1971, he enlisted in the Regular Army for three years.  He successfully completed basic training at Fort Polk, Louisiana and advanced individual training (AIT) at Fort Leonard Wood, Missouri.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 62E (Crawl Tractor Operator) and he was assigned to Korea.  

The FSM’s record confirms that the highest rank he held while serving on active duty was private first class/E-3, which he attained on 26 October 1971.  It also shows that he was reduced to private/E-2 on 25 January 1972 and to private/E-1 on 12 April 1972 for cause.  

The FSM’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions, and his conviction by a special court-martial.

On 25 April 1972, after being advised that discharge action had been initiated on him, the FSM consulted with legal counsel.  Counsel advised the FSM of the basis for the contemplated separation, its effects, and of the rights available to him.  After receiving this legal counseling, the FSM completed his election of rights statement.  In this statement, he acknowledged that he could expect to encounter substantial prejudice in civilian life as a result of receiving an UD.  He further stated that he understood that as a result of receiving an UD, he could be ineligible for many or all benefits as a veteran under both Federal and State Law.

The FSM waived his right to consideration of his case by a board of officers; his right to a personal appearance before a board of officers, and his right to be represented by counsel.  He also elected not to submit a statement in his own behalf.  

On 26 April 1972, the FSM’s unit commander recommended that the FSM be discharged for unfitness under the provisions of Army Regulation 635-212.  The unit commander based his recommendation on the FSM’s established pattern of shirking.  

On 17 May 1972, the appropriate separation authority approved the FSM’s separation and directed that he receive an UD.  On 6 June 1972, the FSM was discharged accordingly.  

The separation document (DD Form 214) issued to and authenticated by the applicant with his signature on the date of his separation confirms that he received an UD under the provisions of Army Regulation 635-212, by reason of unfitness.  This document also verifies that at the time of his discharge, he held the rank of private/E-1 and he had completed a total of 1 year and 24 days of creditable active military service.

The record provides no indication that the FSM applied to the Army Discharge Review Board for an upgrade to his discharge within its 15 year statute of limitations.  

Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions. 

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 Board notes the applicant’s contention that the FSM’s youth and immaturity impacted his ability to serve, and that he was not properly counseled on the impact of his discharge.  However, if finds no evidentiary basis to support these claims.  

2.  The Board takes special note of the fact that after being notified of the separation action, the FSM consulted with legal counsel and was fully advised of the basis for the contemplated separation action and of its possible effects.  In addition, subsequent to this counseling, he voluntarily elected to waive his right to have his case considered by a board of officers and he made no statement in his own behalf.
3.  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the FSM were fully protected throughout the separation process.  Further, it finds that the character of the FSM’s discharge accurately reflects his overall record of service.  Therefore, the Board concludes that an upgrade to his discharge is not warranted at this time. 

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

RKS__  __JM___  __JHL    __  DENY APPLICATION

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

INDEX

CASE ID	AR2003090107	
SUFFIX		
RECON		
DATE BOARDED	2003/07/DD	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/06/06	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360  	144.0000	
2.		
3.		
4.		
5.		
6.