MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            15 July 1999                  
	DOCKET NUMBER:   AR1998013795

	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. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater 		Member	
	Ms. Debra Williams 		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 discharge under other than honorable conditions be upgraded to honorable. 

APPLICANT STATES:  In effect, that prior to going home on leave from Vietnam he was promised assignment with the Air Police when he returned to Vietnam.  However, his orders were changed while he was on leave and his reassignment to the Air Police was denied due to height requirements.  He contends that his first rebellion was because of this fact but after a few months he became very confused and found himself in a lot of trouble and making some serious mistakes.   He also contends that it has been almost 30 years since his return from Vietnam and he has not had any serious problems with the law since 1970. He states that his service prior to coming home from Vietnam was honorable and that he was a highly decorated veteran.  He goes on to state that he is applying for service connected disability through the Department of the Veterans Affairs (VA) for Post Traumatic Stress Disorder (PTSD) and hopes this may enlighten the Board as to the ordeals he suffered while in Vietnam and possibly the catalyst for the problems he encountered with resulted in his undesirable discharge.  In support of his application, he submits a personal statement and three enclosures which include Arguments and Contentions, Supporting Documents and Military Records.            

COUNSEL CONTENDS:  The Disabled American Veterans Office was notified that the applicant’s case was available for review.  To date, there has been no response and the case will be processed and presented to the Board for decision.

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

At age 17, with parental consent, the applicant enlisted on 20 June 1967 for a period of 3 years.  He successfully completed training and was transferred to Vietnam for duty as a light weapons infantryman.  He served in Vietnam from
9 December 1967 to 5 October 1968 and was awarded the Combat Infantryman Badge, two awards of the Purple Heart and an Air Medal.

On 18 November 1968 the applicant went AWOL until 3 February 1969.  He went AWOL again on 8 February 1969 until 20 May 1969.  He commenced another period of AWOL on 9 June 1969 until 20 July 1969.  

On 8 August 1969 the applicant was convicted by special court-martial of two specifications of being AWOL (8 February 1969 to 21 May 1969 and 9 June 1969 to 21 July 1969).  He was sentenced to confinement with hard labor for 4 months, forfeiture of $50.00 pay per month for 4 months and reduction to E-1.  The convening authority approved the sentence on 25 August 1969. 

On 30 September 1969 the unexecuted portion of the applicant’s sentence to forfeiture of pay was suspended until 13 November 1969.  On 4 November 1969, the unexecuted portions of the applicant’s sentence to confinement at hard labor and forfeiture of pay was remitted effective 12 November 1969.

On 22 November 1969 nonjudicial punishment was imposed against the applicant for being AWOL from 17 November 1969 to 20 November 1969.  His punishment consisted of a forfeiture of pay.

On 10 December 1969 the applicant went AWOL until 10 March 1971.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records indicate that on 
10 May 1971 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-206 for misconduct due to being convicted by a civil court during his current term of active military service.  He had served
1 year, 8 months and 13 days of total active service and had 788 days lost time due to AWOL and confinement.

The Board noted that the applicant provided an undated and unsigned DD Form 
293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) with his application.  However, there is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. 

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  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.

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 in accordance with law and regulations applicable at the time. 
2.  Accordingly, the type of discharge directed and the reasons therefor appear to be appropriate considering all the facts of the case.

3.  The applicant’s contentions were noted by the Board.  However, the Board reviewed the applicant’s record of service, which included one special court-martial, one record of nonjudicial punishment and 788 days lost, and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  The applicant’s contention that he has applied to the VA for service connected disability for PTSD was also noted by the Board.  While the Board is empathetic, this condition is not sufficiently mitigating to warrant an upgrade of his discharge. 

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 the aforementioned 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

GDP____  JLP_____  DW_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998103795	
SUFFIX		
RECON		
DATE BOARDED	19990715	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19710510	
DISCHARGE AUTHORITY	AR 635-206  	
DISCHARGE REASON	MISCONDUCT DUE TO BEING CONVICTED BY A CIVIL COURT	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.