MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:   13 January 2000                   
	DOCKET NUMBER:   AR1999027820

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Margaret V. Thompson		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 (UD) be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  That it has been 30 years since he was discharged.  
He is disabled as a result of a truck accident in 1990 and he needs help with his medical care. 

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

That prior to the period of enlistment under review, he completed an honorable period of service in the Regular Army (RA) from 20 June 1968-1 April 1969.  
On 2 April 1969, he reenlisted in the RA for a period of 3 years and his previous military occupational specialty (MOS) 76S (Supply). 

On 5 December 1968, the applicant was convicted by a special court-martial of theft of a camera valued at $349.95.  He was sentenced to forfeiture of 
$70.00 pay per month for 6 months.

On 19 December 1968, the applicant accepted nonjudicial punishment (NJP) under the provision of Article 15, Uniform Code of Military Justice, for fist fighting with another soldier and for failure to go to his appointed place of duty at the prescribed time on five separate occasions.  His punishment included reduction from pay grade E-2 to pay grade E-1 and forfeiture of pay.  

On 27 May 1969, the applicant was assigned to the Republic of Vietnam (RVN).
On 22 June 1969, he accepted NJP for disobeying a lawful order and for being absent from his place of duty.  His punishment included reduction from pay grade E-4 to pay grade E-3 forfeiture of pay (suspended).  

On 9 September 1969, he accepted NJP for being absent without leave (AWOL) from his unit from 4-6 September 1969.  His punishment included extra duty, restriction and forfeiture of pay.

On 10 October 1969, he was convicted by a special court-martial of three specifications of failure to go to his appointed place of duty at the prescribed time.  He was also convicted of sleeping while on guard duty.  His sentence included reduction from pay grade E-2 to pay grade E-1, forfeiture of pay and confinement at hard labor for 3 months (suspended for 3 months).  On 6 November 1969, the suspended portion of his sentence was vacated.

On 23 November 1969, the commander notified the applicant of his intent to recommend that a board of officers be convened under the provisions of Army Regulation 635-212, for the purpose of determining whether the he should be discharged for unfitness before the expiration of his term of service.

On 26 November 1969, a bar to reenlistment was initiated against the applicant as a result of his repeated misconduct.  On 28 November 1969, the bar was approved. 

Also, on 26 November 1969, the applicant was advised by legal counsel of the basis for the contemplated separation action and its effects, and the rights available to him.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UD.  He waived further representation by legal counsel and he waived consideration of his case, or a personal appearance before a board of officers.  He also declined to submit a statement in his own behalf.

On 27 November 1969, the applicant underwent a psychiatric evaluation by professionally trained personnel.  He was diagnosed to suffer from a “passive aggressive personality, chronic, server, manifested by conflict with authority, passive obstructionism, irresponsibility, and inefficiency.”  His condition was diagnosed to have existed prior to service (EPTS).  He was diagnosed as no longer motivated for duty due to his negative attitude towards the military system. Further, he was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right.  

On 26 December 1969, competent authority waived further counseling and rehabilitation, approved the discharge and directed the issuance of a UD, under the provisions of Army Regulation 635-212, by reason of unfitness, for being involved in frequent incidents of a discreditable nature with civil or military authorities.

On 29 December 1969, the applicant was discharged.  He had completed 
1 year, 3 month and 17 days of prior active military service and he had completed 6 months and 4 days on the enlistment under review.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for a review of his discharge.

Army Regulation 635-212, in effect at the time set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unfit for further service by reason of frequent incidents of a discreditable nature with civil or military authorities.  Under this regulation and paragraph the appropriate authority could approve an honorable, a general discharge or a UD.

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 has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant was properly separated in accordance with regulations then in effect and there is no indication of procedural errors, which would have jeopardized his rights.

3.	Many of the offenses the applicant committed were serious and most of them 
were committed in a combat zone during hostile operations.  These offenses clearly diminished the quality of his service below that meriting an under honorable conditions discharge. 

4.  There is no evidence that shows the applicant had a medical condition that was either incurred or aggravated by active military service.  The applicant has provided no evidence to the contrary.

5.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

6.  The Board noted the applicant’s current medical problems, but they do not provide a basis for upgrade of his discharge.  He should work with the Department of Veterans Affairs to determine the availability of medical treatment.

7.	The Board notes that there is an error in item 11c (Reason and Authority) on 
his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him on 29 December 1969.  An administrative correction is required to correct his Enlisted Separation Program Number (SPN) currently shown as AR 635-212, SPN 264 (DISCHARGE) (character and behavior disorder) should be corrected to show AR 635-212, SPN 28B (DISCHARGE) (unfitness, involved in frequent incidents of a discreditable nature with civil or military authorities).

8.  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 (ARBA), Support Division, St. Louis furnish the individual concerned a DD Form 215, (Correction to DD Form 214) to correct item 11c of his DD Form 214 to show that his SPN is AR 635-212 SPN 28B (DISCHARGE).

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

EMW____  EWL____  MVT____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027820	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000113	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19691229	
DISCHARGE AUTHORITY	AR635-212  	
DISCHARGE REASON	A51.00	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.