MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 December 1999
	DOCKET NUMBER:   AR1999025467

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Hubert O. Fry, Jr.		Chairperson	
	Ms. Meta Waller		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 undesirable discharge be upgraded to at least a general discharge.

APPLICANT STATES:  That his discharge was inequitable because the recommendation for discharge included the fact that he had been tried by a summary court-martial in 1967 which was an offense that occurred during his first enlistment and should not have been considered.  He further states that his records will indicate that he was a rehabilitative failure and he should have been discharged as such instead of being unfit.  He goes on to state that during the 3 years subsequent to his discharge he was not in a good mental/emotional condition to help himself and is now service-connected for post-traumatic stress disorder (PTSD) and is in counseling.  He also provides a four-page statement describing the conditions in which he worked in Vietnam and led to his PTSD.  

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

The applicant was inducted in Milwaukee, Wisconsin on 21 January 1966.  He successfully completed his training and was transferred to Vietnam on 3 November 1966 for duty as an operating room specialist. 

 He served in Vietnam until he was returned to Fort Lewis, Washington on 28 October 1967 to be released from active duty (REFRAD).  He was honorably REFRAD on 28 October 1967 in the pay grade of E-2 and was transferred to the USAR Control Group (Annual Training).  He had served 1 year, 9 months, and 8 days of total active service and was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the National Defense Medal.

A review of his records show that nonjudicial punishment (NJP) was imposed against him on at least five occasions during the period of 22 September 1966 and 25 October 1967 for offenses ranging from disobeying a lawful order, driving a vehicle without a license and wreckless driving, exploding firecrackers in the compound, violation of a lawful order, and failure to go to his place of duty.  He was also convicted by a summary court-martial on 11 September 1967 of failure to go to his place of duty.

On 27 May 1970 he enlisted in the Regular Army for a period of 4 years and assignment to Hawaii.  On 10 December 1970, while stationed in Hawaii, NJP was imposed against the applicant for three specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2 (suspended), a forfeiture of pay, and extra duty. 

After spending 10 months in Hawaii, he departed for Vietnam on 5 April 1971.  While in Vietnam NJP was imposed against him on at least two occasions for six specifications of failure to go to his place of duty.  He departed Vietnam on 19 February 1972 and was transferred to Fort Sam Houston, Texas.
While at Fort Sam Houston, NJP was imposed against the applicant for being incapacitated while on duty due to indulgence in intoxicating liquor and for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2 and forfeitures of pay.

On 26 June 1972 he was transferred to Fort Sill, Oklahoma with his unit.  During the period from 24 August 1972 to 21 August 1973 NJP was imposed against the applicant on at least seven occasions for multiple specifications of failure to go to his place of duty, for being AWOL from 2 April to 5 April 1973, for disobeying a lawful order from a commissioned officer, for being AWOL from 7 May to 9 May 1973, and disobeying a lawful order from an NCO.  The applicant also went AWOL from 3 August to 5 August 1973; however, the record is silent as to any punishment imposed.  Additionally, his records show that he was not favorably considered for award of the Good Conduct Medal and he was reduced to the pay grade of E-1 on 21 September 1973.

The facts and circumstances surrounding the applicant’s discharge are not present in the available records; however, his records do show that he was discharged under other than honorable condition on 25 September 1973, under the provisions of Army regulation 635-200, chapter 13, for unfitness, based on his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had served 5 years and 1 month of total active service and had 8 days of lost time due to AWOL.  

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.

A review of the applicant’s records shows that he received an evaluation report while in Vietnam which indicates that the applicant could not carry out the operating room routine even after much counseling and on the job training.  The rating officials recommended that his military occupational specialty (MOS) be changed.  There is no indication in the available records to show that he was involved in any type of rehabilitation program or that he was deemed a rehabilitative failure.

Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual could be found unfit for various types of misconduct that included frequent incidents of a discreditable nature with military authorities.  An undesirable discharge was normally considered appropriate. 

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 must be presumed that 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.

2.  Given the available evidence contained in his records, it appears that the type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contention that his discharge was inequitable because his court-martial conviction during his previous term of service was considered in the discharge process appears to be without merit.  Although the facts and circumstances are not available for review by the Board, it is common practice for the record’s custodian to provide a list of all court-martial convictions and the date of the conviction to commanders for use in separation proceedings.  This affords the appropriate authority complete information and affords them the opportunity to make an informed decision when characterizing an individual’s service.  The Board finds that there was sufficient evidence without the presence of the court-martial information to warrant the issuance of an undesirable discharge.  Additionally, the applicant had the option to submit a statement in his own behalf at the time if he so elected.

4.  Notwithstanding the applicant’s contention that he was a rehabilitative failure, which is not supported by the evidence of record, such a failure did not preclude his separation for other reasons if deemed appropriate by the commander at the time.

5.  The applicant has failed to convince the Board through the evidence submitted with his application or the evidence of record that his discharge was unjust and should be upgraded.

6.  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.

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

___hof___  __dw____  __mw___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999025467	
SUFFIX		
RECON		
DATE BOARDED	1999/12/21	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1973/09/25	
DISCHARGE AUTHORITY	AR635-200, ch13	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583 	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.