MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            28 October 1998
	DOCKET NUMBER:   AC98-09345

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis w. Barbee, Jr..		Member	
	Mr. Raymond V. O’Connor		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, granted under the Special Discharge Review Program (SDRP), be upgraded to an honorable discharge.

APPLICANT STATES:  That his discharge was inequitable as his offenses were largely due to his Post Traumatic Stress Disorder (PTSD) from service in Vietnam.

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

That he enlisted in the Regular Army on 27 February 1968 for a three year term of service.  He completed basic training at Fort Bragg on 17 May 1968 and was reassigned to Fort Rucker on 24 May 1968 for advanced individual training in aircraft maintenance.  On 3 June 1968, the applicant went AWOL and was dropped from the rolls as a deserter on 3 July 1968.

After 518 days AWOL, the applicant was returned to military control at Fort Devens on 2 November 1969 where he received a general court-martial for his AWOL.  He was sentenced to confinement for 9 months, forfeited $75 per month for 9 months, and was reduced to PVT E-1.  He was confined at the Fort Devens stockade until he was transferred to Fort Dix on 4 May 1970.

Between 14 May and 14 November 1970, the applicant served as a duty soldier at Fort Dix and at West Point.  On 16 December 1970, he was assigned to an Aviation Battalion in Vietnam as a door gunner.  While in Vietnam, the applicant advanced to an E-4 and was awarded an Air Medal and an Aircraft Crewman Badge.  He also received the Republic of Vietnam Service Medal.

After 10 months and 20 days in Vietnam, the applicant was given a special court-martial on 6 November 1971 for disrespect to his superior commanding officer on 
23 October 1971.  He was sentenced to confinement at hard labor for 3 months and reduction to PVT E-1.  He was confined at the Correctional Holding Detachment in Vietnam on 6 November 1971 and transferred to Correctional Training Facility at Fort Riley on 21 December 1971.  He was discharged on 
20 January 1970 with an undesirable discharge under conditions other than honorable for unfitness, involved in frequent incidents of a discreditable nature with military authority.

His undesirable discharge under conditions other than honorable was reviewed on Special Discharge Review Program (SDRP) on 4 April 1977 and upgraded to a general discharge under honorable conditions on 31 May 1977 by virtue of having received a military decoration (an Air Medal) other than a service medal.

The applicant’s general discharge under honorable conditions granted under the SDRP was reviewed in 1978 by the Army Discharge Review Board under requirements of Public Law (PL) 95-126.  Due to the applicant’s 518 day AWOL and desertion from advanced training prior to going to Vietnam, his SDRP upgrade to a general discharge was not affirmed.  The 518 days AWOL and desertion exceeded the 180 day AWOL limit under PL 95-126.  The applicant’s general discharge was not down graded but a change to it was issued to the effect that he was not eligible for certain benefits under the Veterans Administration with a SDRP general discharge.

APPLICABLE REGULATIONS AND LAWS:

On 19 January 1977, the President directed an extension to Proclamation 4313 requiring a review of the discharges of former service members who were discharged under the clemency program between 4 August 1964 and 28 March 1973 and received a clemency discharge.  The extension mandated the upgrade of the clemency discharge to a general discharge under honorable conditions unless there was reason to the contrary.  The Department of Defense Special Discharge Review Program (SDRP) was implemented 5 April 1977 to carry out this direction.  The review was conducted by the Army Discharge Review Board (ADRB) for Army service members.  Discharge upgrade was considered based on DOD directed criteria which included being wounded in combat in Vietnam, receiving a military decoration other than a service medal, successful completion of a normal tour in Southeast Asia, receiving an honorable discharge from a previous tour of service, and for certain other criteria.  The soldiers’ overall conduct and performance determined the level of discharge granted.

On 8 October 1977, Public Law (PL) 95-126 was passed which denied veterans benefits to service members absent without authority (AWOL) for 180 consecutive days or more during the Vietnam era, 4 August 1964 to 28 March 1973, who were classified as deserters or who were classified a conscientious objectors regardless of discharge upgrade under previous programs.  DOD was required to establish historically consistent, uniform standards by which to grant discharge upgrades.  DOD was also required to review all discharges previously upgraded under the 5 April 1977 Department of Defense Special Discharge Review Program (SDRP), and certain other programs, utilizing these uniform standards to confirm or deny the previous upgrades.  These reviews were conducted for Army service members by the Army Discharge Review Board (ADRB) under authority of the Secretary of the Army.

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.  There is no evidence of record that the applicant suffered from PTSD at the time of his discharge on 20 January 1970 or that PTSD contributed to his unfitness manifested by frequent involvement in incidents of a discreditable nature with military authority to include his 518 day AWOL from advanced training prior to being assigned in Vietnam.

2.  His undesirable discharge for unfitness due to frequent involvement in incidents of a discreditable nature with military authority is fair and equitable in light of his 518 day AWOL and desertion and his disrespect toward his superior commanding officer.

3.  His subsequent upgrade of his undesirable discharge to a general discharge under honorable conditions under the SDRP is proper and equitable in light of his Air Medal decoration while serving in Vietnam.

4.  The denial of his eligibility for certain Veterans benefits and denial of his discharge upgrade affirmation under PL 95-126 is equitable and proper due to his 518 day AWOL and desertion.

5.  The record does not contain any evidence nor has the applicant submitted any evidence to prove his contention of error or injustice.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director