MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001                  
	DOCKET NUMBER:   AR2001059744

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Donald P. Hupman		Member	
	Ms. Regan K. Smith		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 under other than honorable conditions (UOTHC) discharge be upgraded to a general or honorable discharge.

APPLICANT STATES:  That he served more than two years and one month of military service.  He contends that his service was clean and honorable during his first enlistment and that the punishment was too severe in relation to the standard of a Bad Conduct Discharge.  He states that he disobeyed orders from his superiors and he cannot live with this stigma for the rest of his life.  He further states that he has paid for his errors from the year 1961 to this present time.  

In support of his application, he provides two DD Forms 214 (Report of Transfer or Discharge), three letters and a certificate that are translated in Spanish (since these four documents were translated in Spanish, they were not provided to the Board for consideration).

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

The applicant was inducted in the Army on 4 January 1961.  He completed basic and advanced individual training and was honorably discharged from active duty on 8 June 1961 for immediate reenlistment.  He was assigned to Fort Hood, Texas as a rifleman.  

On 31 January 1962, the applicant was convicted by a summary court-martial of failing to go to his appointed place of duty.  He was sentenced to perform hard labor without confinement for thirty days and to forfeit $25.00.  His records contain 50th Infantry Unit Order Number 28, dated 25 October 1962, which shows he was punished under the provisions of Article 15, Uniform Code of Military Justice, for misconduct.  He was reduced to the rank of private/pay 
grade E-2, effective 25 October 1962.  

On 16 February 1963, the applicant was convicted by a special court-martial of being disrespectful in language toward his superior noncommissioned officer.  He was sentenced to confinement at hard labor for six months and to forfeit $28.00 pay per month for six months.

The facts and circumstances and the board action surrounding the discharge process are not on file.  However, his DD Form 214 indicates that he was discharged on 21 May 1963 under the provisions of Army Regulation 635-208, for unfitness, frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions discharge.  

He had 1 year, 8 months and 19 days of creditable service with 84 days of lost time due to confinement.  He served 2 years, 1 month and 24 days total active military service.

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

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities.  An undesirable 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 the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

2.  The Board noted the applicant’s contention that his service was clean and honorable during his first enlistment and his punishment was too severe in relation to the standard of a Bad Conduct Discharge.  However, his records show that he received an Article 15, a summary court-martial and a special court-martial during his second enlistment.  

3.  In view of the applicant's numerous acts of indiscipline, it does not appear that his under other than honorable conditions discharge was too severe.

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

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 this 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

RVO____  DPH____  RKS_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001059744	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011016	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19630521	
DISCHARGE AUTHORITY	AR635-208	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.