MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:             13 April 2000 
	DOCKET NUMBER:   AR1999029727

	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.

	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Ms. Sherri V. Ward		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 (UD) be upgraded to a general under honorable conditions discharge.

APPLICANT STATES: That his ability to serve in his military occupational specialty (MOS) as a Cannoneer was impaired by an injury to his right foot.  During his convalescence period, he was assigned to quarters.  He states that while in quarters he was playing (tussing) with a Korean soldier, whom he accidentally scratched.  He was convicted of assault and sentenced to 6 months confinement, after which he was returned to duty and assigned to clean up the day room.  He further states that during this time period, an officer told him he could possibly go home earlier if he went before a medical board.  He states he did apply for a medical discharge, which was approved.  He points out that after returning to the United States, he found that he had not received a medical separation, but a bad discharge.  He states that he is now 69 years old, unable to work, sick and needs medical treatment at the Veterans Administration.  He submits a copy of his criminal record check form showing no charges from the Horry County Clerk of Court, Conway, South Carolina, and two personal affidavits of character reference.

COUNSEL CONTENDS:  The applicant was discharged under Army Regulation (AR) 615-368 “unfitness, characterized as undesirable”.  Counsel states that the applicant received a psychiatric examination, which diagnosed him with an inadequate personality, with borderline intelligence and suggested that he could possibly adjust to the Army if assigned to duties of the most menial nature in January 1953.  Further, he suggested that the applicant should now be discharged under the provisions of AR 635-369, for unsuitability, which was apparently not chosen.  Counsel points out that the applicant’s actions appear to confirm his unsuitability for military duty, an honorable type discharge would have been warranted.  

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

On 24 November 1952, he was inducted into the Army of the United States for a period of 2 years.  He completed basic training at Camp Chaffee, Arkansas and his advanced individual training in MOS 1844 (Cannoneer).  On 17 August 1953, he was assigned to Korea for duty in his MOS at an unknown installation.  On 
20 March 1953, he was advanced to pay grade E-2, which was the highest pay grade he achieved.

On 1 October 1953, he was convicted by a special court-martial (SPCM) of two specifications: first of committing assault on another enlisted member by cutting him on the leg with a dangerous weapon, to wit: a knife on 26 August 1953; and second for wrongfully and willfully discharging a carbine (automatic machine gun) in the vicinity of a vehicle occupied by Greek military personnel.  His sentence included forfeiture of $55.00 pay per month for 6 month and confinement at hard labor for 6 months. On 15 December 1953, the SPCM convening authority directed that the unexecuted portion of the sentence be suspended.

On 24 May 1954, he was convicted by a SPCM of two specifications: first of 
being intoxicated from liquor and incapacitated for proper performance of his duty on 2 May 1954; and second of being absent without leave (AWOL) from 
8 to 9 May 1954.  His sentence included forfeiture of $50.00 pay per month for 
4 months and confinement at hard labor for 4 months.  

On 13 October 1954, he was convicted by a SPCM of two specifications: first of using disrespectful language towards his superior noncommissioned officer (NCO); and second of being drunk while on duty.  His sentence included forfeiture of $50.00 pay per month for 6 months and confinement at hard labor for 6 months.  On 21 January 1955, the SPCM convening authority directed that the unexecuted portion of the sentence be suspended.

On 18 October 1954, the unit commander notified the applicant of initiation of separation proceedings under the provisions of Army Regulation 615-368, by reason of unfitness, as evidenced by his past offenses; his inability to carry out guard duty orders; for being drunk while on duty; barging in to see the battalion commander; continuously threating members of his unit with physical violence; and his insubordinate attitude towards NCO’s in his battery.

He was recommended for a hearing by a board of officer.  The applicant underwent a medical examination which determined he was free of physical or mental disorders, but did possess a psychopathic (anti-social) personality.  The recommendation was that he be separated from the service under the appropriate administrative regulation. His mental status evaluation was normal.

On 22 October 1954, the applicant acknowledged notification to appear before a board of officers and did not submit a statement in his own behalf.

On 25 October 1954, the board of officers met and the applicant appeared with his counsel.  On 12 November 1954, the board recommended separation from the service because of unfitness and that he be furnished a UD. 

On 15 November 1954, the separation authority approved his separation under the provision of Army Regulation 615-368, by reason of unfitness with a UD.  The applicant was returned to United States for separation.

On 11 March 1955, he was separated under the provisions of Army Regulation 
615-368 with an UD, by reason of unfitness because of habits and traits of character rendering retention in the service undesirable.  He had 1 year, 6 months and 11 days of total active service and 280 days of lost time due to AWOL and military confinement.

On 14 September 1955, the Army Discharge Review Board denied his request for an upgrade of his discharge.

Army Regulation 615-368, in effect at the time set forth procedures and authority for separation of enlisted personnel for unfitness.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A UD 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, and 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 the aforementioned requirement.

2.  Notwithstanding his completion of training and reaching pay grade E-2, his record of misconduct clearly showed that he was unwilling or unable to further perform his duties as a soldier consistent with the Army standards for acceptable personal conduct and performance by military personnel.

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.

4.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

5.  The applicant was medically cleared for separation.  He has provided no probative medical evidence to the contrary.

6.  Determination of entitlement to the Department of Veteran Affairs (VA) benefits rests with that agency, not the Army.

7.  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

___FE __  ___CLA__  _SVW __  DENY APPLICATION

				Karl F. Schneider
				Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029727	
SUFFIX		
RECON		
DATE BOARDED	2000/04/13	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1955 03 11	
DISCHARGE AUTHORITY	AR 615-368	
DISCHARGE REASON	A144.50	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	A123.01	
2.	A71.00	
3.	A76.00	
4.		
5.		
6.