MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 May 2000
	DOCKET NUMBER:   AR1999033482

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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 his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD). 

APPLICANT STATES:  In effect, that he was unnecessarily harassed based on his ethnic and cultural background.  He indicates that he was born and raised in the most rural part of Appalachia and that based on his family upbringing he was a loner prior to entering the service.  He claims he successfully completed all training and his trouble only began when two noncommissioned officers (NCOs) singled him out for harassment and subjected him to beatings and undue harassment.  The applicant claims he was innocent of most charges against him and they resulted from this harassment.  The last charge made against him was in March 1958 and he indicates that he was in fact guilty of this charge of AWOL but that his misconduct was the result of his fearing for his life after he had been warned that he would be hurt on an upcoming field exercise.  He indicates that during his last six months in service he continually attempted to be transferred back to a headquarters unit with no success and that he asked to be discharged based on his low intelligence, but was denied.  He concludes by commenting that he is now 60 years old and has successfully raised four children, ensuring that they were formally educated and has contributed to the proper upbringing of his grand children.  The applicant’s expanded statement along with letters of support from his children, a grandchild, his pastor, his employer, and his doctor are enclosed. 

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

The applicant’s military service record was not available for review by this Board. A 1973 fire at the National Personnel Records Center destroyed approximately 18 million service members’ records.  It is believed that the applicant’s service records were lost in that fire.

The evidence of record does include a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), signed by the applicant.  A separation packet which includes the facts and circumstances surrounding the applicant’s discharge processing and a Department of Defense (DD) Form 493 (extract of military records of previous convictions).

On 15 December 1955, the applicant was tried and convicted by special court-martial for being AWOL from 11 to 15 November 1955 and for missing bed check on 10 November 1955.  The resultant sentence included confinement at hard labor for 6 months and a forfeiture of $28.00 per month for 6 months.  

On 19 December 1957, the applicant was tried and convicted by summary 
court-martial for illegally entering an installation by unauthorized means.  His sentence included hard labor without confinement for 30 days and a forfeiture of $50.00. 

On 19 March 1958, the applicant was tried and convicted by special court-martial of willfully disobeying a lawful order and for being AWOL between February and March of 1958.  The resultant sentence included confinement at hard labor for 
6 months, a forfeiture of $50.00 per month for 6 months, and to be reduced in rank to private/E-1.  

On 20 March 1958, the applicant’s unit commander prepared a recommendation that the applicant appear before an administrative separation board to be considered for elimination, under the provisions of Army Regulation 635-208.  The commander cited the applicant’s refusing to obey an order and then going AWOL as the primary basis for taking the action.  In addition, in support of his request, the commander indicated that the applicant was one of the worst soldiers in his command and maintained a sloppy appearance, verged on insolence, and resented authority.  He also suggested that the applicant be separated with an UD.  

On 21 March 1958, the applicant acknowledged receipt of his notification to appear before an administrative separation board and completed his election of rights.  He waived his right to counsel and indicated that he did not desire witnesses to appear in his behalf.  

On 26 March 1958, an administrative separation board convened, with the applicant present, to consider the applicant’s separation from the Army.  After careful consideration of the evidence of record the board found that the applicant would be of no further benefit to the military service and they recommended that he be discharged from the military service, under the provisions of Army Regulation 635-208.  

The DD Form 214 on file documents that on 22 April 1958, the applicant was separated with an UD, under the provisions of Army Regulation 635-208, by reason of frequent incidents of discreditable service.  At the time of his discharge the applicant had completed a total of 3 years, 2 months, and 2 days of active military service and had accrued 74 days of time lost due to AWOL and confinement.  

There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within the 15 year statute of limitations. 

Army Regulation 635-208, then in effect, provided the policies, procedures, and guidance pertaining to the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals separated under these provisions normally received an UD.  

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 noted the applicant’s good post service conduct, employment record, and his success as a member of his community, in addition, to his excellent achievement as both a parent and grandparent.  However, these factors alone do not provide a basis to grant the relief requested by the applicant.

2.  After careful examination of the available records, the Board concluded that there was no evidence of record or independent evidence submitted by the applicant which corroborates his claims that he was unduly harassed and physically abused by NCO’s of his unit.  The Board found no indication that the actions of his command to process him for separation were either arbitrary or capricious.  Therefore, since these contentions are unproven they do not mitigate the applicant’s misconduct sufficiently to warrant an upgrade to his discharge.
 
3.  The available evidence of record shows that the applicant declined to be represented by counsel at the administrative separation board appointed to consider his elimination and that he was present at the separation board and declined to call witnesses in his own behalf.  Therefore, the Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  In the absence of evidence to the contrary, the Board determined that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the applicant’s discharge is commensurate with his overall record of service.  

5.  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.

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

___mdm_  __js ____  ___mw __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033482	
SUFFIX		
RECON		
DATE BOARDED	2000/05/24	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1958/04/22	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON	Unfit	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.