MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 April 2000
	DOCKET NUMBER:   AR1999029804

	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. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Roger Able		Member	
	Ms. Margaret V. Thompson		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 an honorable discharge (HD).

APPLICANT STATES:  The applicant states that he signed a waiver without proper counsel and that he signed the waiver under the stress of being in the stockade.

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

He enlisted in the Regular Army (RA) for a period of 3 years on 18 August 1958.  He successfully completed basic combat training and advanced individual training (AIT) at Fort Benning, Georgia.  Upon completion of AIT he was awarded military occupational specialty 111.00 (Light Weapons Infantryman) and assigned to Germany.

On 20 May 1960 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for overstaying his pass limits.  The punishment consisted of 7 days restriction.

On 12 June 1960 he accepted NJP for overstaying his pass limits.  The punishment consisted of 14 days restriction.

On 28 December 1960 the applicant was convicted by summary court-martial (SCM) for AWOL.  He was sentenced to performance of hard labor without confinement for 30 days and forfeiture of $70.

On 8 January 1961 he accepted NJP for being AWOL.  The punishment consisted of 14 days restriction.

On 8 February 1961 the applicant departed AWOL.  On 15 February 1961 he surrendered to military authorities at Worms, Germany. 

On 10 February 1961 a bar to reenlistment was imposed against the applicant.  The applicant did not submit a statement in his own behalf.

On 20 February 1961, in a written statement, the applicant’s previous platoon leader indicated that the applicant reacts poorly to authority and that he would not do a job without being constantly supervised.  The platoon leader stated that the applicant believed he was being “picked on” and that since he was being harassed he did not want to comply with instructions. 

On 20 February 1961, in a written statement, the applicant’s new platoon leader indicated that he had counseled the applicant many times and that “the applicant continued to be apathetic towards his duties and responsibilities, that he neglected every facet of individual responsibility, and that he was a chronic attender of sick call.”  

On 24 February 1961 the applicant was reassigned to a new unit for the purpose of rehabilitation.  

On 1 March 1961 the applicant was convicted by special court-martial (SPCM) for AWOL (8-15 February 1961) and disobeying a lawful order.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $70 per month for 6 months.

The applicant was in confinement from 1 March-7 April 1961.  On 8 April 1961 the unexecuted portion of the confinement was suspended.  

On 25 April 1961 the suspension of confinement was vacated and the applicant was returned to confinement.  The act of misconduct that precipitated the vacation of suspension is not in the record. 

On 9 May 1961 his commanding officer initiated action to discharge him under the provisions of Army Regulation 635-212 by reason of unfitness - frequent incidents of a discreditable nature with military authorities.   The unit commander indicated that the applicant persisted in missing formations, disobeyed orders, and failed to be at his appointed place of duty.  The commander stated that he had counseled the applicant on numerous occasions, however, the applicant displayed a negative attitude and requested to be discharged for unfitness.

On 9 May 1961 the applicant’s squad leader provided a written statement indicating that the applicant refused to make formations or to comply with orders, and displayed a poor attitude towards everyone in the unit.  He reported that the applicant stated that he wanted a discharge. 

On 9 May 1961, after notification of discharge proceedings, the applicant voluntarily waived right to counsel and did not submit a statement in his own behalf.  

On 25 May 1961 the separation authority approved the applicant’s discharge and issuance of an Undesirable Discharge Certificate, DD Form 258A.  On 6 June 1961 the executed portion of the confinement was remitted and the applicant was released from confinement.  Accordingly, he was discharged on 16 June 1961 after completing 2 years, 7 months, and 3 days of active military service. 

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separations for unfitness.  A UD was normally considered appropriate.

On 24 March 1967 the Army Discharge Review Board reviewed and denied the applicant’s request for an upgrade.

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 contentions of the applicant have been noted by the Board.  However, they are not support by either evidence submitted with the application or the evidence of record.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  In view of the applicant’s many acts of indiscipline, it does not appear that his UD was too severe.

3.  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 failed to submit evidence that would satisfy the aforementioned requirement.

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

__wtm___  ___ra___  __mvt___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029804	
SUFFIX		
RECON		
DATE BOARDED	20000420	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19610616	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	5100	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 9217		
2. 9235		
3. 0100		
4. 9500		
5.		
6.