MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2002
	DOCKET NUMBER:   AR2002074782

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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 an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was not aware that the law provided the opportunity to request an upgrade his UD to an HD.  He states that his brother’s death caused his misconduct and use of drugs.  He further states that he was denied a hardship discharge while stationed at Fort Dix, New Jersey.  He now feels that he served his country and has been unfairly denied benefits.  In support of his application, he submits a copy of his separation document 
(DD Form 214).

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

On 28 February 1964, he entered active duty in the Regular Army for 3 years.  He completed training in, was awarded, and served in military occupational specialty (MOS) 11H (Infantry Direct Fire Crewman).  

The applicant’s record shows that the highest rank he held on active duty was private first class/E-3, and that the only award he received was the National Defense Service Medal.  No other acts of valor, significant achievement, or service warranting special recognition are documented in his record.  Further, the applicant’s Military Personnel Records Jacket (MPRJ) contains no evidence showing that he applied for or was denied a hardship discharge. 

The applicant’s record does document an extensive disciplinary history, which includes his conviction by special courts-martial on the following three separate occasions for the offenses indicated:  27 May 1965, for wrongfully possessing one pack of cigarettes containing a habit forming narcotic drug; 1 June 1966, for being absent without leave (AWOL) from on or about 15 October to on or about 21 December 1965 and on or about 7 January 1966 to on or about 15 March 1966; and 5 July 1967, for being AWOL from on or about 31 October 1966 to on or about 23 May 1967.  

In addition, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 July 1965, for failing to go to his appointed place of duty and on 12 August 1965, for disobeying the lawful order of a noncommissioned officer (NCO).

The applicant’s unit commander notified him that separation action was being initiated to eliminate him from the Army under the provisions of Army Regulation 635-212, for unfitness.  The commander stated that the basis for the separation action was the applicant’s extensive disciplinary history that included three periods of AWOL, totaling 338 days, and three convictions by special 
courts-martial.  

On 10 August 1967, the applicant acknowledged receipt of the separation action notification.  He consulted legal counsel, who advised him of the basis for the contemplated separation action, its effects, and of the rights available to him.  At the conclusion of this counseling, the applicant completed his election of rights by waiving consideration of his case by a board of officers and the right to consulting counsel, and electing not to submit a statement in his own behalf.

On 21 August 1967, the separation action was approved by the appropriate authority.  On 18 September 1967, the applicant was discharged from the Army with an UD.  At the time of his discharge, he had completed a total of 2 years, 
1 month, and 17 days of creditable active military service, and he had accrued 514 days of time lost due to AWOL and confinement.  

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

Army Regulation 635-212, in effect at the time, sets forth the basic authority for the separation of enlisted personnel who are found unfit or unsuitable for further military service.  Paragraph 6a(1) 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The Board notes the applicant’s contentions that his brother’s death caused his misconduct and use of drugs, and that he was denied a hardship discharge.  However, it finds no evidence or record or independent evidence to support these claims. 

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Further, after full consideration of his entire record, the Board finds that the character of the applicant’s discharge is commensurate with his overall record of service.  Therefore, it concludes that an upgrade of his discharge is not warranted at this time.

4.  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.

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

__JNS__  __DPH___  __WDP__  DENY APPLICATION

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

INDEX

CASE ID	AR2002074782	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/12	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19670918	
DISCHARGE AUTHORITY	AR635-212.  .  .  .  .  	
DISCHARGE REASON	unfitness	
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6400	
2.		
3.		
4.		
5.		
6.