MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 March l999                 
	DOCKET NUMBER:   AC98-08749
				   AR1998000710
	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Ernest W. Lutz, Jr.		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:  In effect, reconsideration of his request for upgrade of his under other than honorable conditions (sic undesirable discharge (UD), issued under other than honorable conditions) to a general discharge (GD), which was initially denied by the Board on 8 October 1975.  Since records reflecting the Board’s consideration at that time are no longer available, it is impossible to determine if the evidence and arguments now presented are new and different.  Therefore, the case is reviewed de novo.

APPLICANT STATES:  That he believes that the severity of the punishment for the offense was too harsh.  He states that other individuals went to Canada, but were granted Presidential pardons.  He was never given the opportunity.  He served in the Republic of Vietnam (RVN).  He was given a psychiatric evaluation and was diagnosed with a passive dependent personality, chronic, moderate, manifested by drug use and irresponsible behavior.  Yet he was never placed in a drug rehabilitation program.  He was not aware that he could request a pardon from the President of the United States.  He submits several certificates and letters of reference showing that he is a good citizen and has adjusted well to his community.

COUNSEL CONTENDS:  That the applicant’s discharge should be upgraded.  

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

He enlisted in the Regular Army on 14 November 1967 for 3 years, with parental consent and a moral waiver for juvenile offenses.  He was trained in military occupational specialty (MOS) 70A (Clerk) in accordance with his enlistment option.  He served first as a clerk with a missile battalion in California, where he was advanced to the rank of private first class, pay grade E-3.  On 8 July 1968, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to a formation.  His punishment include a forfeiture and restriction to his unit area and extra duty.  He did not appeal the punishment.  On 15 July 1968, he was reduced to pay grade E-2 for reasons not shown in his records.

On 1 November 1968, he was assigned to duties in the RVN, and was advanced to pay grade E-3 on 3 November 1968 and to specialist four, pay grade E-4 on 
7 December 1968.  On 27 January 1969, he received a second NJP for failure to go to formation.  His punishment included a forfeiture and extra duty.  

On 29 May 1969, the applicant was convicted by a summary court-martial (SCM) of failure to go to his appointed place of duty.  His approved sentence confinement at hard labor for 1 month and forfeiture of $70 pay for 1 month, both punishments suspended for 1 month, but he was administratively reduced to pay grade E-1 due to the sentence to confinement.  

On 29 July 1969, he was convicted by a special court-martial (SPCM) of willfully disobeying a lawful command on 30 May 1969 and failure to go to his appointed place of duty on 2 July 1969.  His approved sentence included confinement to hard labor for 6 months (3 months suspended until 29 October 1969) and to forfeit $82 pay per month for 6 months.  He was assigned to the US Army Correctional Holding Detachment in the RVN to serve his sentence.  He initially served 29 days confinement and was returned to duties.  However, on 
25 October 1969, his suspended sentence was vacated for failure to go to his place of duty, and he was returned to military confinement until 6 January 1970.  

On 12 November 1969, his commander notified him that he was initiating discharge proceedings under the provisions of Army Regulation 635-212, by reason of unfitness.  This was based on his record of NJP and court-martial convictions for willfully disobeying of the lawful command of a commissioned officer, for being disrespectful to his superior noncommissioned officer, and for seven instances of failure to go to his appointed place of duty.  He was advised of his right to appear before a board of officers, to have counsel and to make a statement in his own behalf.  He was also advised that he could waive these rights.   

On 20 November 1969, the applicant underwent a psychiatric evaluation by a medical officer trained as a psychiatrist.  He was diagnosed with a passive dependent personality, chronic, moderate, manifested by drug use (which it was stated was found as matter of history), irresponsible behavior.  The condition was determined to have existed prior to entry on active duty, that he met the retention standards prescribed in chapter 3, Army Regulation 40-501, and that there was no psychiatric disease or defect which warranted disposition through medical channels.  His condition was found to represent a character and behavior disorder.  He was recommended for an administrative discharge under the provisions of Army Regulation 635-212.  

On the same date, he underwent a medical examination in connection with the separation action.  He stated on his Standard Form 89, Report of Medical History, that he had no drug or narcotic habit.  He was found medically fit for an administrative separation under the provisions of Army Regulation 635-212.  No drug dependency or related problems were identified by the examining physician, although his character and behavior diagnosis, mention above, was noted on the separation physical examination forms.  

On 11 December 1969, he consulted with legal counsel, and waived his rights, in writing.  His chain of command recommended approval and waiver of further rehabilitative efforts.  

On 5 January 1970, the separation authority, waived further rehabilitation efforts and approved the discharge with a UD for unfitness (frequent incidents of a discreditable nature with military and civil authorities).  He directed that the applicant be returned to the United States for separation.  

On 8 January 1970, the applicant was discharged under the provisions of Army Regulation 635-212, with a UD, by reason of unfitness, frequent incidents of a discreditable nature with military and civil authorities.  He was credited with 
1 year, 10 months and 12 days active service and 103 days of lost time due to military confinement.  

On 14 February 1975, the Army Discharge Review Board (ADRB) denied his request for upgrade of his discharge.

On 8 October 1975, this Board denied his request for upgrade of his discharge, but as mentioned earlier, the details of this review are not currently available to this Board.

On 17 June 1977, the ADRB again denied the applicant’s request for upgrade of his discharge.  This review was conducted in accordance with the “DOD Discharge Review Program (Special)”, also known as the SDRP.  

On 23 September 1980, the ADRB again denied the applicant’s request for upgrade of his discharge in accordance with “current discharge review standards” in effect in 1980.  

On 29 March 1989, further action on two 1987 applications from the applicant to the ABCMR were administratively denied by the staff of the Board based upon the prior review of his discharge by the Board in 1975.   

Army Regulation 635-212, in effect at that time, set forth the basic authority for the separation of enlisted personnel from active duty for unfitness (frequent incidents of misconduct) or unsuitability (inability to adjust satisfactorily to military life, to include incidents of minor misconduct or character and behavior disorders).  That regulation provided, in pertinent part, that commanders would separate a member when, in the commander’s judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.  When separation for unfitness (misconduct) was warranted a UD was normally considered appropriate.  When being separated for unsuitability, soldiers would receive either a general discharge, under honorable conditions, or an honorable discharge.  

Presidential Proclamation 4313 was issued on September l6, 1974.  It provided, in pertinent part, that individuals absent from the military for a long period of time, primarily in connection with the war in the RVN, could avail themselves of a clemency program.  If they returned to military control, swore allegiance again to the United States and agreed to perform a period of alternate service under the supervision of the Selective Service, a Clemency Discharge would be given in the name of the President.  In essence, this was a neutral discharge and a 
pardon issued by the President of the United States.  However, the individual would normally receive a UD from the military service.  Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

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 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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s claim of drug problems and lack of rehabilitative efforts while in the service are not supported by the record.  There is no evidence submitted by the applicant that he ever reported that he had a drug abuse problem to medical authorities, except in connection with his psychiatric evaluation.  In fact, he stated on the same date as the psychiatric evaluation on his Medical History Statement that he did not have a drug or narcotic habit.

3.  The applicant was not eligible to participate in the Presidential clemency program as published in Presidential Proclamation 4313, since he was discharged for repeated incidents of misconduct rather than an extended period of absence without leave.  Secondly, he would have had to apply for the program at the time and to have voluntarily provided community service in connection with the program.  Therefore, no basis has been established for a change in the reason for his discharge.  

4.  The applicant’s good post service adjustment is commendable, but does not overcome the reason for and characterization of his military service between 1968 and 1970. 

5.The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

6.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case. 

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__  __EWL__  __KF____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-08749/AR1998000710	
SUFFIX		
RECON	19751008	
DATE BOARDED	19990318	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19700108	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.13	
3.	A92.21	
4.	A93.17	
5.	A94.05	
6.	A00.00