MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 February 2001   
	DOCKET NUMBER:   AR2000048992

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Roger W. Able		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 general.

APPLICANT STATES:  That the discharge is too harsh.  In support of his application, he submits three DD Forms 214 (Report of Transfer or Discharge) and four character reference letters.

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

The applicant enlisted in the Arkansas Army National Guard on 14 May 1964 for a period of 6 years.  He was ordered to active duty for training on 26 August 1964 and was honorably released from active duty on 12 February 1965.  The applicant was honorably discharged from the Arkansas Army National Guard on 13 May 1966 and transferred to the USAR to complete his remaining service obligation.  On 6 February 1967 the applicant was honorably discharged from the USAR to enlist in the Regular Army.  He entered active duty on 7 February 1967 for a period of 3 years.  The applicant was honorably discharged on 8 October 1967 for immediate reenlistment.  He reenlisted on 9 October 1967 for a period of 6 years.  He served as a stock control & accounting specialist in Vietnam from 29 June 1968 through 29 June 1969.  

While in Vietnam, nonjudicial punishment was imposed against the applicant on 12 October 1968 for absenting himself from his appointed place of duty (bed check).  His punishment consisted of 14 days of restriction.    

On 11 February 1970 the applicant was convicted by special court-martial of being AWOL from 16 September 1969 to 14 January 1970.  He was sentenced to have $20 pay per month for 3 months detained for 6 months and to perform extra duty for 2 months.  On 17 February 1970 the convening authority approved the sentence. 

On 10 July 1970 nonjudicial punishment was imposed against the applicant for being AWOL from 2 July 1970 to 9 July 1970.  His punishment consisted of a reduction to pay grade E-2 and 45 days of extra duty.

On 8 March 1971 the applicant was convicted by special court-martial of being AWOL from 18 August 1970 to 5 February 1971.  He was sentenced to be confined at hard labor for 4 months and to forfeit $74 per month for 4 months.  The convening authority approved the sentence on 10 March 1971.

On 24 February 1971 the applicant underwent a separation medical examination and was found qualified for separation with a physical profile of 111111.  He underwent a psychiatric evaluation on 8 March 1971 and was psychiatrically cleared for any administrative or disciplinary action.
 
On 26 March 1971 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 two special court-martial convictions, 361 days of lost time, chronic violation of Article 86 of the Uniform Code of Military Justice, lack of motivation toward self improvement and negative attitude in regards to his military responsibilities. 

After consulting with counsel on 29 March 1971, 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 29 March 1971 the unit commander initiated a recommendation to discharge the applicant under the provisions of Army Regulation 635-212 for unfitness.  The unit commander recommended that the applicant be furnished an undesirable discharge.

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.

Accordingly, the applicant was discharged on 9 April 1971 under other than honorable conditions under the provisions of Army Regulation 635-212, for unfitness due to an established pattern for shirking.  He had served 5 years, 
10 months and 25 days of total active service with 361 days of lost time due to AWOL and confinement. 

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 an individual was subject to separation for unfitness because of an established pattern of shirking.  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.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 

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

3.  The Board considered the applicant’s contention that the discharge was too harsh.  The Board also considered the character reference letters provided in support of his claim.  However, the Board reviewed the applicant’s record of service which included two special court-martial convictions, two nonjudicial punishments and 361 days of lost time and determined that his military record was not satisfactory.  Therefore, the applicant is not entitled to a general discharge. 

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

JNS____  MHM____  RWA____  DENY APPLICATION

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

INDEX

CASE ID	AR2000048992	
SUFFIX		
RECON		
DATE BOARDED	20010227	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19710409	
DISCHARGE AUTHORITY	AR 635-212  	
DISCHARGE REASON	Unfitness	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.