MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 November 2002
	DOCKET NUMBER:   AR2002075659

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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 general discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that he was advised that his discharge would be upgraded to honorable after 5 years had elapsed.

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

He enlisted in Chicago, Illinois, with a moral waiver on 30 April 1964, at 20 years of age, for a period of 3 years, training as an artillery cannoneer, and assignment to Europe.  He completed his basic combat training at Fort Knox, Kentucky, and his advanced individual training at Fort Sill, Oklahoma.   

He was advanced to the pay grade of E-2 on 30 August 1964 and was transferred to Germany on 18 September 1964, where he was assigned to an artillery battery in Gemunden, Germany.

On 6 December 1964, nonjudicial punishment was imposed against him for being absent from his place of duty on 5 December 1964.  His punishment consisted of a forfeiture of pay.

On 16 January 1965, he was convicted by a special court-martial of being absent without leave (AWOL) from 8 January to 9 January 1965 and for disobeying a lawful order from a superior noncommissioned officer.  He was sentenced to confinement at hard labor for 1 month, reduction to the pay grade of E-1 and a forfeiture of $55.00.

On 11 February 1965, the applicant commander initiated a recommendation to bar the applicant from reenlistment.  He cited as the basis for his recommendation, the applicant’s disciplinary record, his record of habitual misconduct, as evidenced by his rebellion to any form of authority, unsatisfactory performance of duty, sloppiness of dress, speech and mind.  He further indicated that the applicant had only been assigned to the unit for a month and had personally indicated that he desired to be separated from the Army.  Accordingly, he concurred with his wishes and initiated separation action under the provisions of Army Regulation 635-209.

The applicant acknowledged the commander’s actions and elected not to submit a statement in his own behalf.  Accordingly, the appropriate authority approved the bar to reenlistment.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant, which shows that he was discharged under honorable conditions at Fort Hamilton, New York, on 12 March 1965, under the provisions of Army Regulation 635-209, for unsuitability.  He had served 10 months and 12 days of total active service and had I day of lost time due to AWOL.

There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge.

Army Regulation 635-209, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unsuitability when it was determined that it was unlikely that an individual would develop sufficiently to participate in further military training and/or become a satisfactory soldier.  An honorable or general discharge was authorized.  There has never been any provisions for an automatic upgrade of such a discharge and there is no evidence in the available records to suggest that the applicant was informed that such a provision existed.

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 must be presumed that the applicant’s administrative separation under the provisions of Army Regulation 635-209 for unsuitability was accomplished in accordance with the applicable regulations with no violations of any of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been considered by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service during such a short period of 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

___fe ___  ___le____  __tl_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002075659	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/11/21	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1965/03/12	
DISCHARGE AUTHORITY	AR635-209/UNSUIT	
DISCHARGE REASON	UNSUIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  730	144.7800/A78.00	
2.		
3.		
4.		
5.		
6.