MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  24 February 2000 
	DOCKET NUMBER:   AR1999028375

	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:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. James P. Huber		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:  Correction of his military records by changing his character of service to honorable.

APPLICANT STATES:  In effect, that he believes his difficulty with military authority figures was attributable to his mental condition at the time.  He further states that he had not slept in several days because of enemy shelling and work schedule; and that he reached a point wherein he could not take anymore and needed a break but couldn’t get one.  

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

He enlisted in the Regular Army on 24 July 1969 for a period of 3 years.  After he successfully completed his initial training, he was assigned to duties as a pay disbursement specialist in military occupation specialty 73C in Vietnam on 28 February 1970.  The Board noted that his military health records were not available.

On 28 October 1970, he was tried and convicted by special court-martial for threatening to kill his company commander, a first lieutenant; his battalion executive officer, a major; a military policemen, a private first class; threatening to do bodily harm to his section chief, a captain; disobeying a lawful order from a commissioned officer; and failing to be at his appointed place of duty.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $88.00 per month for 6 months and reduction to private (PVT E-1).

On 30 November 1970, his unit commander initiated separation proceedings in accordance with the provisions of Army Regulation (AR) 635-212 for unfitness due to his frequent incidents of a discreditable nature with military authorities and an established pattern of shirking.  His unit commander stated that his duty performance was sub-standard; that he had also been suspected of associating with known drug users; and that despite his special court-martial conviction, repeated counseling and other rehabilitative efforts, his attitude and performance deteriorated to the extent he was unfit for further military service.  Accompanying documents in the separation packet indicated that he was afforded the opportunity to consult with a military lawyer; and that he was made aware of the implication of such a discharge including deprivation of many or all Army benefits, ineligibility of VA benefits, and deprivation of benefits as a veteran under both federal and state laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life as a result of receiving a discharge for unfitness.

There was nothing in his available records to indicate that he had a mental condition or other medical problem to warrant his referral for separation processing through medical channels.

On 10 December 1970, the separation authority, a brigadier general, approved his command’s request for separation and directed the issuance of a DD Form 258A, an Undesirable Discharge Certificate.

His DD Form 214, separation document, indicated that he was separated in the rank of PVT E-1 on 16 December 1970 under honorable conditions in accordance with the provisions of AR 635-212.  He was issued a DD Form 257A, General Discharge Certificate.  He had completed 1 year, 4 months and 22 days of creditable service.  NOTE:  The Board noted that the character of service, under honorable conditions, and type of certificate issued, DD Form 257A, as reflected on the DD Form 214 are both incorrect.

AR 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.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 Board concludes that the applicant’s request to change his character of service to honorable is not warranted considering the evidence of record.

2.  The Board further concludes that he has already benefited from an inadvertent administrative error that caused his separation document to reflect that he was discharged under honorable conditions and issued a General Discharge Certificate when, in fact, the separation authority clearly intended for him to be discharged under conditions other than honorable and issued an Undesirable Discharge Certificate, DD Form 258A.

3.  Even though there was nothing in the evidence of record or evidence submitted by him to mitigate his record of poor conduct and behavior that clearly warranted an undesirable discharge, the Board believes that correction of this administrative error, nearly 30 years after it occurred, would be unjust and place him in a more disadvantaged position than that held prior to his application to the Board.  Therefore, his DD Form 214 should remain unchanged.

4.  The aforementioned not withstanding, his administrative separation was 
accomplished in compliance with applicable regulations with no indication of 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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_CA____  __JH___  ___MT___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028375	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000224	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.