MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 April 2003
	DOCKET NUMBER:   AR2002081247

	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:

	Ms. Joann Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Yolanda Maldonado		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 undesirable discharge be upgraded to an honorable discharge.

APPLICANT STATES:  That he was a young and immature soldier that was not worried about the future.  He claims that he was helping his fellow soldiers when the incidents occurred and he did not know this type of discharge would be affected by his behavior.  He claims that all of his Army evaluations were excellent and that he was a good soldier.  He states that he volunteered for Vietnam, but he never went.  Also, he states that he wanted to reenlist in the Army but that never occurred.  He further states that he has made some mistakes and now regrets what he did.  He states that he is now 61 years old and needs medical services and assistance from the Veterans Administration.  In support of his application, he submitted a character reference, an endorsement, and discharge orders from the Ohio National Guard.

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

He initially served in the Ohio National Guard from November 1956 to August 1959.  He was inducted into the Army on 17 January 1962 and was honorably discharged on 22 March 1962.  On the following day, he enlisted in the Regular Army for a period of three years.  He completed training as a radio operator and as an infantryman and served in Italy from 28 January 1963 through 27 May 1964.  

On various occasions between the period October 1963 and March 1964, the applicant received four nonjudicial punishments for the following offenses: 
(1) for being absent from his unit; (2) for failing to go to his appointed place of duty; (3) for assaulting a specialist four and making excessive noise in his sleeping quarters; and (4) for failing to go to his appointed place of duty and for being disorderly.

The applicant underwent a mental status evaluation on 30 March 1964 and was diagnosed as having an antisocial personality.  The psychiatrist recommended that the applicant be separated from the service by administrative action deemed appropriate by his command.

On 17 April 1964, the applicant was counseled and notified by his unit commander of initiation of separation action under the provisions of Army Regulation 635-208, for unfitness.  The applicant acknowledged the notification of separation action for unfitness, waived his right to a hearing before an administrative separation board, waived legal counsel, and did not submit a statement in his own behalf.  

The unit commander recommended that applicant be separated from the service under the provisions of Army Regulation 635-208, for unfitness and be furnished an Undesirable Discharge Certificate.  The unit commander cited as the reasons for the proposed separation as the applicant’s Italian Civil Court Action for aggravated theft on 3 March 1963, simple assault upon an Italian National on 31 August 1963 and his four nonjducial punishments.  

The applicant underwent a psychiatric evaluation on 18 April 1964.  The evaluation found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

The separation authority approved the separation on 6 May 1964 and directed that the applicant be issued an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged on 28 May 1964 under the provisions of Army Regulation 635-208, for unfitness.  At the time of his discharge, he had completed 2 years, 2 months and 6 days on his current enlistment and 7 years, 6 months and 1 day of total active military service.  

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. 

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 22 years of age at the time of his first offense.

3.  The Board considered the applicant's contention that all of his Army evaluations were excellent and that he was a good soldier.  However, records show that he received four nonjudicial punishments and civil court actions for aggravated theft and simple assault upon Italian Nationals.

4.  The applicant’s service does not meet the standards of honorable service as defined in Army Regulation 635-200.  Therefore, the characterization of the applicant’s current discharge is appropriate considering all the facts of the case.  There also is no apparent error, injustice, inequity, or change in policy or standards on which to base recharacterization of his discharge to honorable.

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

JL________  RTD________  YM________  DENY APPLICATION

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

INDEX

CASE ID	AR2002081247	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	20030415 	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.