MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           15 March 2000     
	DOCKET NUMBER:   AR1999030755

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  In effect, that he was not given a hearing, that he was not given the military occupational specialty (MOS) he was promised and he was experiencing severe hardship at the time.  He contends that he was in the Army, had a wife and baby and was only 17 years old.  He believes that if he had been older, things would have been different.  In support of his application, he submits a letter of explanation.  In summary, he describes his family background and his financial and personal problems in the Army.  He contends that he did not go AWOL because of a disregard for the military but because he felt at the time he did not have any options because no one wanted to listen a 17 year old.   

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

At the age of 17, the applicant enlisted on 30 November 1968 for a period of
3 years.  He successfully completed his training and was transferred to Fort Carson, Colorado, for duty as a light weapons infantryman.   

On 6 June 1969 the applicant was convicted by special court-martial (SPCM) of being AWOL from 5 May 1969 to 24 May 1969.  He was sentenced to forfeiture of $90.00 pay per month for 3 months.  The convening authority approved the sentence on 7 June 1969.  

The applicant’s personnel records show he went AWOL from 31 August 1969 to 20 November 1969; 8 December 1969 to 20 January 1970; and 18 February 1970 to 29 September 1970.

On 2 October 1970 the applicant was notified of his pending separation from the service under the provisions of AR 635-212 for unfitness.  The unit commander based his recommendation for separation on the applicant’s record of AWOL’s.  After consulting with counsel on 2 October 1970, the applicant waived consideration of his case by a board of officers, waived a personal appearance before a board of officers and waived representation by counsel.  He also elected not to submit a statement in his own behalf.

On 7 October 1970 the applicant underwent a separation medical examination and was found qualified for separation with a physical profile of 111111. 

The applicant underwent a psychiatric evaluation and was diagnosed as having a passive-aggressive personality disorder, severe.  The psychiatrist determined that the applicant has a severe character and behavior disorder with no violent tendencies, but believed not to be amenable to further rehabilitative efforts or to have the potential to become an effective soldier.  Also, the applicant was cleared for any administrative decision deemed appropriate by his command. 
On 20 October 1970 the unit commander initiated a recommendation to discharge the applicant under the provisions of Army Regulation 635-212 for unfitness.  The commander stated that court-martial was considered; however, in view of the applicant’s poor attitude, unwillingness to serve, and the psychiatric report confirming the futility of further rehabilitative efforts, administrative elimination was considered more appropriate.  He based his recommendation for separation on the severe nature of the applicant’s psychiatric evaluation, excessive time lost in the service, resistance to authority and regulations, and a pattern of behavior which renders him a complete loss to the service.
The intermediate commander recommended that the applicant be discharged under the provisions of AR 635-212 for unfitness and that he be furnished an Undesirable Discharge Certificate.

On 9 November 1970, the appropriate authority noted the applicant’s waiver of the right to appear before a board of officers.  He approved the recommendation for separation and directed that the applicant be furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-212, for unfitness (involved in frequent incidents of a discreditable nature with civil or military authorities), on
25 November 1970.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-212, in effect at the time, set for the basic authority for the separation of enlisted personnel.  Paragraph 6 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 separation for unfitness.  An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 applicant’s contention that he was not given a hearing, is without merit.  Evidence of record shows the applicant waived consideration of his case by a board of officers on 2 October 1970. 

2.  The Board noted the applicant’s contention that he was not given the MOS he was promised.  However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.  

3.  While the Board is empathetic, the applicant’s stated reasons of youth and financial and personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.
 
4.  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.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  The Board reviewed the applicant’s record of service which included one SPCM and 382 days lost and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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

RVO____  MKP____  VBC____   DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030755	
SUFFIX		
RECON		
DATE BOARDED	20000315	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19701125	
DISCHARGE AUTHORITY	AR 635-212  	
DISCHARGE REASON	Unfitness (Involved in frequent incidents of a discreditable nature with civil or military authorities)	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.