MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 May 2000
	DOCKET NUMBER:   AR2000037916

	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. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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 essence, that his undesirable discharge (UD) be upgraded to an honorable discharge and that the reason be changed to physical disability. 

APPLICANT STATES:  In effect, that he spent 9 months in the Republic of Vietnam (RVN) and that he is disabled as a result of a wound that he received to his right eye.  He is also unable to hear out of his right ear.  Further, he states that he was a clerk and he was assigned to a mortar unit after he refused to go to the field.  He believes that he should have been returned to the “states.”  He was evacuated from “Phu Bae” to Saigon and from there to Valley Forge Hospital, Pennsylvania, where he was discharged.  Additionally, he states that he was eligible for pay grade E-4 and he was never promoted.  His medals were taken away.  He submits a written statement, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and Congressional correspondence, dated 2 June 1999, in support of his request.

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

On 23 March 1971, he was inducted into the Armed Forces of the United States for a period of 2 years.  He served in military occupational specialty (MOS) 
71H (Personnel Specialist).  

His Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows that he was in confinement from 15 to 16 May 1971 for reasons unknown. The available records do not contain any further details about this period of confinement. 

On 25 May 1971, a DA Form 3349 (Medical Condition-Physical Profile Record), shows that the applicant received a “P2 Profile for severe right sensorineural hearing loss and mild left sensorineural hearing loss.”  It was recommended that he be assigned to a low noise MOS.  He also received a T3 Profile that stated no crawling, stooping, running, jumping, prolonged standing or marching due to a stress fracture to his left knee.  On 16 June 1971, the profiles were reissued for 8 weeks.

On 17 August 1971, he was assigned to the RVN.  On 20 November 1971, while assigned to the RVN, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against him for failure to turn in his vehicle in accordance with the unit policy, and for transporting local nationals on two occasions on 26 October 1971 in violation of command regulations.  His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of $40.00 pay and 14 days restriction (suspended).

On 23 December 1971, NJP was imposed against him for being absent from his unit on 17 December 1971.  His punishment included forfeiture of $74.00 pay and 
14 days restriction.

On 31 January 1972, court-martial charges were filed against the applicant for breaking restrictions, for failure to go to his appointed place of duty (the orderly room) at the time prescribed on 25 December 1971, for being absent without leave (AWOL) from 26-29 December 1971 and for being AWOL from 12-27 January 1972. 

On 1 February 1972, he consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  On 5 February 1972, competent authority approved the request.  On 24 February 1972, he was transferred from the 
101st Airborne Division to the Headquarters, and Headquarters Detachment, 
3rd Brigade, 1st Calvary Division for unknown reasons.  The approved chapter 
10 discharge was never executed.

On 13 April 1972, court-martial charges were preferred against him in his new unit for being AWOL from his unit from 14-29 March 1972, and for committing two acts of assault upon a noncommissioned officer (NCO) by striking him in the face with his hand and for raising a knife at the NCO that was likely to cause grievous bodily harm. 

On 24 April 1972, the applicant again consulted with legal counsel, signed a waiver and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was advised that the offenses for which he was charged could lead to a UD.  He authenticated a statement with his own signature in which he stated that he understood the ramifications of receiving a UD.  He submitted a statement in his own behalf in which he contended that “he had a messed up ankle,” and that he had a profile due to loss of hearing.

Both his unit commander and his intermediate commander recommended separation with a UD.  On 30 April 1972, competent authority approved his request. Upon departing the RVN, he was identified as a drug abuser and as a result he was reassigned to Valley Forge Hospital, Pennsylvania, for a short period of time for drug rehabilitation prior to separation action.  

On 1 June 1972, he requested withdrawal of the waiver he signed on 24 April 
1972.  He contended that he requested separation under the provisions of chapter 10, Army Regulation 635-200, because he wanted to return to the “states” so that he could get medical treatment for his hearing loss.

On 14 June 1972, the local separation approval authority stated that the applicant had offered nothing to indicate that his rights had been violated.  The applicant’s request for withdrawal of the waiver was disapproved.

On 27 July 1972, he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UD.  He had completed 
1 year, 3 months, and 6 days of active military service and he had 29 days lost time due to being AWOL and in confinement.

His DD Form 214 shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal 
with/60 Device, an Overseas Service Bar, the Expert Badge with Grenade Bar, and the Expert Badge M-16 with Rifle Bar.  There is no evidence that these awards were ever withdrawn or otherwise taken away from him.

On 1 June 1977, the ADRB denied the applicant’s request for an upgrade of his discharge under the DOD Discharge Review Program (Special) or SDRP.  The denial was based on the fact that he assaulted an NCO with a knife.  The applicant’s request for an upgrade of his discharge was also denied on
29 June 1978, in a de novo review by the ADRB.  

On 17 June 1980, in a personal appearance, the ADRB denied his request for an upgrade of his discharge a third time.

The ADRB Case Report and Directive for this hearing also shows that he had a 
P2 Profile for a severe hearing loss in his right ear since he was a child.  

The applicant’s record also contains an undated Standard Form 
600 (Chronological Record of Medical Care) that shows an optometrist determined that he had Unaided Visual OD 20/30, Acuity OS 20/30.  He was prescribed corrective glasses to correct his vision to 20/20 in both eyes.

Additionally, the available records do not show that either of his eyes were injured while in combat.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although, an honorable or general discharge was authorized, a UD was then 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 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's voluntary request for separation under the provisions of Army 
Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

3.  The available evidence does not show that the applicant ever received an injury 
to his right eye.  

4.  There is no evidence of any medical condition, which rendered the applicant medically unfit and justified physical disability processing, nor has the applicant provided any probative medical evidence that he was unfit at the time of separation.

5.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

6.  Even though the applicant was identified to have had hearing loss since childhood, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

7.  Further, the available records contains nothing, nor has the applicant provided 
anything that shows he was unjustly denied promotion to pay grade E-4.

8.  The available records show that he received all of the awards and decorations he earned while on active duty.

9.  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

__cmf___  __fe____  __rjw____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037916	
SUFFIX		
RECON		
DATE BOARDED	20000517	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19720727	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	For the Good of the Service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.		
3.		
4.		
5.		
6.