MEMORANDUM OF CONSIDERATION

IN THE CASE OF:     

BOARD DATE:           25 February 1999
DOCKET NUMBER:   AC94-06616A
			   AR1998013870

	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	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward 		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Samuel Calderon		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:  Reconsideration of the Board's previous denial of his request to upgrade his discharge.

APPLICANT STATES:  In effect, the Army improperly sent him to Viet Nam in violation of his reenlistment contract and that that he wasn’t responsible for his actions as he was “just a boy who came home from war with a lot of terrible memories.”  He further indicates that the VA has rated him for post traumatic stress disorder (PTSD).  He states that it is unfair that draft dodgers are pardoned and given a second chance but he isn’t and that the prior denials of his request were not proper as he had originally asked for relief in 1975 with requests for reconsideration in 1993 and 1996.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 1 June 1994 (COPY ATTACHED).

The applicant’s contentions constitute new argument, which has not previously been reviewed by the Board hence, warrants presentation for Board review.  The applicant submits no additional evidence in support of his contentions.

Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  The clemency discharge did not effect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

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 applicant’s reenlistment contract shows that he reenlisted in 1968 for four years with an initial assignment guarantee of duty with the 94th Engineer Battalion, Europe.  He was transferred to and served with this unit for eleven months prior to being reassigned to the 34th Engineer Battalion in Viet Nam.  There is no indication in his records that the assignment to Europe was for a guaranteed period in excess of initial assignment consideration.  Hence reassignment based upon the needs of the Army to Viet Nam was proper.

2.  As noted in the Board’s prior review the applicant had disciplinary problems throughout his period of service.  These problems did not arise only after his tour in Viet Nam as he avers.

3.  There is no evidence of record to substantiate the applicant's contention that he was suffering from any mental or emotional defects at the time of his discharge.  Absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the PTSD issue does nothing to demonstrate an error or an injustice in the discharge.

4.  The fact that some former soldiers were afforded a chance to earn a clemency discharge has no bearing on this case.  The applicant’s situation did not meet the same criteria that personnel under that program had to meet for favorable review consideration.  The applicant committed offenses that could have lead to a court-martial.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress. 

5.  There is no indication in the applicant’s official records of a request to either the Army Discharge Review Board or this Board prior to his application of 10 January 1994.  However, it was only after all aspects of the case had been considered and it had been concluded that there was no basis to recommend a correction of your records that the Board considered the statute of limitations.  Had the Board determined that error or injustice existed it would have recommended relief in spite of a failure to submit an application within the 3-year time limit.  The Board has never denied an application simply because it was not submitted within 3 years.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

__JMA___  __JLP__  ___SC___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC94-03313A
AR1998013870	
SUFFIX		
RECON	 	
DATE BOARDED	19990224 	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	 . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00/189	
2.		
3.		
4.		
5.		
6.