MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           23 October 2003    
		DOCKET NUMBER:  AR2003091497

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 a general discharge.  He also requests that his narrative reason for separation be changed to "Convenience of the Government."  

APPLICANT STATES:  In effect, that he should not have been drafted because his wife was pregnant in 1963 and the child was born in 1964 and that he had a better paying civilian job.  He contends that he had a valid marriage and he was not separated from his wife.  He also states that they had an apartment together but because of his low income they decided his wife should stay with her mother. He states that he is to blame for his situation. 

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

The applicant was inducted on 8 April 1964.  He successfully completed training and was awarded military occupational specialty 120.000 (pioneer).

On 5 January 1965, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 28 December 1964 to 2 January 1965.  His punishment consisted of restriction.

On 5 April 1965, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of restriction.

On 15 October 1965, the applicant underwent a separation physical examination.  
On 21 October 1965, the applicant underwent a psychiatric evaluation and was cleared for administrative separation.

On 26 October 1965, in accordance with his pleas, the applicant was convicted by a special court-martial of four specifications of being AWOL.  He was sentenced to be confined at hard labor for 2 months.  On 17 November 1965, the convening authority approved the sentence.  On 6 December 1965, the unexecuted portion of the sentence to confinement was remitted.

On 2 November 1965, the applicant was notified of his pending separation under the provisions of Army Regulation 635-208 for unfitness.  After consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf. 

On 23 November 1965, the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-208 for unfitness.  He cited the applicant's extensive disciplinary record, his lack of motivation for continued service, and his inability to become a satisfactory soldier as the reasons for taking the action.  The unit commander further recommended that the applicant receive an undesirable discharge.

The separation authority action is not contained in the available records.

The applicant was discharged on 6 December 1965 with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness due to an established pattern for shirking.  He had served 1 year, 2 months, and 
14 days of total active service with 165 days lost due to AWOL and confinement.

Item 11c (Reason and Authority) on the applicant's DD Form 214 (Report of Transfer or Discharge) shows his separation program number as "386."  

There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 
  
Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  An undesirable discharge was normally considered appropriate. 

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

Appendix l (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 (Personnel Separations Separation Documents), in effect at the time, states the reason for discharge based on separation program number “386” is “An established pattern for shirking” and the regulatory authority is Army Regulation 635-208.

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 Board reviewed the applicant’s record of service which included two nonjudicial punishments, one special court-martial conviction and 165 days lost time and determined that his record of service was not satisfactory.  Therefore, the applicant is not entitled to a general discharge.

3.  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.  He also had an opportunity to submit a statement on his own behalf at the time in question and failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The separation program number used in the applicant’s case is correct and was applied in accordance with the applicable regulations.  Therefore, there is no basis for granting the applicant’s request to change his narrative reason for separation on his DD Form 214.

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

JL_____  MKP_____  AAO_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003091497	
SUFFIX		
RECON		
DATE BOARDED	20031023	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19651206	
DISCHARGE AUTHORITY	AR 635-208  	
DISCHARGE REASON	Unfitness due to an established pattern for shirking	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.