MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001                   
	DOCKET NUMBER:   AR2001058525

	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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, Jr.		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 discharge under honorable conditions discharge be corrected to a medical discharge.

APPLICANT STATES:  In effect, that he was told by his counsel that he could benefit from a medical discharge.  He should have received a medical discharged because of his height (6’ 8’’).

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

On 27 August 1969, the applicant was inducted into the Army of the United States for 2 years.  He completed the required training and was awarded military specialty 70A10 (Clerk).

On 12 June 1970, at Fort Lewis, Washington, the applicant was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 3 to 18 April 1970 and from 23 to 30 April 1970, for two specifications of failing to repair and for breaking restriction.  He was sentenced to a forfeiture of $83.00 pay per month for 2 months and confinement at hard labor for 90 days (suspended for 3 months).

On 24 June 1970, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unsuitability.  The commander’s recommendation was based on the applicant’s numerous occasions of failure to repair, for prolonged AWOLs and for breaking restriction.  He also displayed low motivation and dereliction in the performance of duty.

On 2 July 1970, a psychiatric evaluation diagnosed the applicant as having a passive-aggressive personality disorder.  There was no evidence of any mental disease, defect, or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40.  He was found to be mentally able to distinguish right from wrong, to adhere to the right, and had the mental capacity to understand and participate in board and other legal proceedings.  The applicant’s medical file is not available.

On 21 July 1970, the applicant was advised of his rights by counsel.  He waived his rights for consideration of his case by a board of officer, waived personal appearance before a board of officers, elected not to make a statement on his behalf, and waived representation by counsel.

On 28 July 1970, the appropriate authority approved the recommendation, waived the requirements for counseling and rehabilitation and directed the issuance of a General Discharge Certificate under the provisions of Army Regulation 635-212, for unsuitability.

On 5 August 1970, the applicant was discharged in pay grade E-3 under the provisions of Army Regulations 635-212, for unsuitability with a general discharge.  He had completed 9 months and 16 days of creditable active service and had 53 days of lost time.

Army Regulation 635-212, in effect at the time set forth the basic authority for separation of enlisted personnel.  That regulation provided in pertinent part, that commanders would separate a member when, in the commander’s judgement, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.  When separation for unsuitability a general or an honorable discharge 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, it is concluded:

1.  In order to justify correction of a military record that 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 this requirement.

2.  The applicant’s contention that he was too tall for military service is unfounded.  There is no evidence that his height would have been a factor in receiving a medical discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.

4.  Considering the applicant’s court-martial conviction, the characterization of his discharge was appropriate.

5.  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___  __rks___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058525	
SUFFIX		
RECON		
DATE BOARDED	20011016	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19700805	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	A40.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.4000	
2.		
3.		
4.		
5.		
6.