MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  6 April 2000
	DOCKET NUMBER:   AR1999027114

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. John M. Slone		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest M. Willcher		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, that his general discharge be upgraded to a honorable discharge; and that he be paid for 48 days of leave with medical disability.

APPLICANT STATES:  In effect, that he incurred an injury to his eyes during his military service; that his sight has deteriorated as a result of this injury particularly, in his left eye; and that he now needs help because he will not be able to work much longer due to his failing eye sight.

In support of his request, the applicant included a personal statement and also submitted copies of documents, some of which were contained in his records and pertained to positive aspects of his duty performance including 
2 certificates of training completion, a safe driver award, a physical fitness training score card, and a letter of appreciation.  He also submitted 3 letters attesting to the high quality of his post-service conduct, behavior and character of which all recommended, in effect, that his request be granted.

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

He enlisted in the Regular Army on 15 February 1968 for a period of 3 years.  He successfully completed basic combat and advanced individual training and on 26 July 1968, he was assigned to wheel vehicle mechanic duties in military occupation specialty (MOS) 63B in Germany.

A chronological record of medical care indicates, in pertinent part, that on 24 May 1968, he was treated for a fracture to the bridge of his nose as a result of being struck with a baseball bat.  The entry also indicated that his glasses were broken.  Other entries relating to this injury indicated that he fully recovered without complication and was also issued new glasses.  

A clinical record report indicated that on 14 September 1968, he incurred a contusion to his left hand and left heel resulting from a fall down several stairs in his barracks.  The report further indicated alcohol involvement.  On 12 January 1970, he was involved in a multiple car accident and was hit by a car while walking and incurred bruises to his right leg.  Subsequent entries on his chronological record of medical care indicated that he fully recovered from this accident without complication.

Between 16 October 1968 and 12 May 1971, nonjudicial punishment by Article 15, UCMJ, was imposed against him 5 times for a variety of offenses including damage to a government vehicle, 2 days of AWOL, disobedience to a lawful order, disobedience to a lawful command, violation of a general regulation, and 

possession of 9.02 grams of hashish.  His punishments included reduction to private (PVT E-1) twice, forfeiture of $340.00 over 7 months, and 132 days of extra duty and restriction.  Also, during this same period on 26 March 1969, he was convicted by general court-martial for stealing government property specifically, four .45 caliber weapons and one .38 caliber weapon, and entering government property with the intent to commit larceny.  He was sentenced to confinement at hard labor and reduction to PVT E-1.

On 24 May 1971, his unit commander initiated separation proceedings under the provisions of Army Regulation (AR) 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with military authorities and recommended the issuance of an Undesirable Discharge Certificate.

A report of psychiatric evaluation indicated a diagnosis of character and behavior disorder with poor potential for rehabilitation.  The report cleared him psychiatrically for any action deemed appropriate by his command.  

A report of medical history and medical examination qualified him for separation.  The report of medical examination also contained a statement, signed by him, that he was in very good health.

On 21 June 1971, the separation authority, a major general, directed his discharge for unfitness and the issuance of an Undesirable Discharge Certificate.

His DD Form 214, separation document, indicated that he was separated on 29 June 1971, under conditions other than honorable in accordance with the provisions of AR 635-200, Chapter 10.  He had completed 2 years and 
9 months of creditable service with 227 days of lost time due to confinement. The Board noted that the specific chapter authority for separation indicated on the DD Form 214 as Chapter 10, is incorrect.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program or SDRP, required in the absence of compelling 

reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

On 20 June 1977, the Army Discharge Review Board (ADRB) under the Special Discharge Review Program (SDRP), determined that when his level of education and 24 months of satisfactory service were held against his acts of 
misconduct that may have been caused by personal problems, alcohol and 
drug abuse, and other extenuating or mitigating circumstances, he warranted a discharge upgrade in the spirit of compassion.  Accordingly, the ADRB upgraded his discharge under other than honorable conditions to a discharge under honorable conditions (general).  His DD Form 214 was annotated to show that the date of application was 13 June 1977; that the discharge was upgraded on 20 June 1977; and that his characterization of service prior to the discharge upgrade was under other than honorable conditions.

In October 1977, Public Law (PL) 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

On 3 April 1978, the ADRB re-examined his general discharge upgrade granted under the SDRP and determined that the quality of his post-confinement military service including the continuation of disciplinary infractions which likely precipitated his 5th Article 15 and separation proceedings did not warrant affirmation of his general discharge.  Accordingly, the ADRB, by majority vote, did not affirm his general discharge.  The minority voting member report stated, in effect, that the applicant was apparently worthwhile enough to be returned to duty following his confinement; and that some consideration was given to his psychiatric report which diagnosed a character and behavior disorder.

On 13 July 1978, the Adjutant General of the Army, a brigadier general, notified him, by letter, that the ADRB re-reviewed his prior discharge upgrade under the SDRP as required by PL 95-126 and affirmed the discharge upgrade.  The letter also included a copy of a DD Form 215, Correction to DD Form 214, Report of Separation From Active Duty, that stated, in effect, that discharge review under PL 95-126 determined that the characterization of service was warranted.  The Board noted that after reviewing the ADRB re-review proceedings, the letter and DD Form 215 was issued affirming the SDRP upgrade contrary to the ADRB decision by majority vote that did not affirm the prior discharge upgrade.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

There was nothing in the evidence of record or in the evidence submitted by him to indicate that he was unable to perform his duties according to his rank or MOS that would require separation processing through medical channels.  Also, there was nothing contained in his records indicating that he was entitled to payment for 48 days of accrued leave.

A FBI background check revealed that during his post-service life, he was involved in serious misconduct and punished by civilian authorities.  His misconduct included fraud, burglary and driving while under the influence of alcohol.  His punishment consisted of confinement, monetary fine and probation.

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 request lacks merit when the evidence of record is considered. 

2.  Considering the nature, severity, and frequency of his offenses, the Board concludes that military officials demonstrated considerable compassion by upgrading his undesirable discharge to a general discharge.  However, despite the fact that the ADRB later voted not to affirm the prior discharge upgrade under SDRP, the Board believes that an inadvertent administrative error occurred which resulted in the issuance of an official letter and DD Form 215 affirming the discharge upgrade and thereby allowing his entitlement to VA benefits, clearly contrary to the intent of the ADRB.  

3.  The Board further concludes that although his overall record of post-service conduct and behavior which similarly patterned his military service would not normally merit any consideration for upgrading his general discharge, removing the affirmed discharge upgrade, granted by administrative error, would be an injustice and therefore should remain. 

4.  The Board noted that the reason and authority for separation on his DD Form 214 incorrectly reflected Chapter 10.  Otherwise, his administrative 
separation was accomplished in compliance with applicable regulations with no 
indication of any other procedural errors that would tend to jeopardize his rights. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

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.

NOTE:  Request that the Army Review Boards Agency Support Division correct so much of item 9e reflected on the DD Form 214, Report of Separation from Active Duty, by deleting the portion of the authority for separation AR 635-200, Chapter 10 SPN 246, by adding that the applicant was separated under Secretarial Authority, and by issuing a new DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JS___  __JA___  __EW___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027114	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000406	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19710629	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	UNFITNESS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.