MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  12 October 2000
	DOCKET NUMBER:  AR2000038886

	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	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Carol J. Suiter		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 undesirable discharge be upgraded to a general discharge.

APPLICANT STATES:  That he came into the Army with a permanent profile and a criminal record.

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

That he was inducted into the Army on 21 April 1969.  His induction records show that he had a profile “2” for upper extremities due to a bent and stiff forefinger (trigger finger) on the right hand caused by a pre-military gun shot wound.  Prior to entering the service, he had 4 counts of juvenile offenses between ages 11 and 18 for assault and battery, burglary, unlawful entry and stealing, and delinquency.  He also had one civil offense at age 19 for disorderly conduct.

After completing training, the applicant was assigned on 12 September 1969 to the 429th Medical Company (Ambulance) at Fort Bragg as an ambulance driver.  He was qualified as a medical corpsman.  He was AWOL from 17 September to 7 October 1969 for which he received summary court-martial punishment of restriction and extra duty for 45 days and forfeiture of $60.00.  He was advanced to the pay grade E-3 on 20 November 1969.

On 3 February 1970, the applicant was charged with failure to go at the time prescribed to his appointed place of duty.  Under Article 15, UCMJ, he was punished by forfeiture of $36 (suspended), extra duty for 14 days, and restriction for 20 days.

On 17 February 1970, the applicant was ordered to duty in Vietnam.  He went AWOL from the Overseas Replacement Station at Fort Lewis, Washington, from 22 March to 7 April 1970 for which he received a special court-martial sentence of confinement at hard labor for 2 months and forfeiture of $150.  He was confined at Fort Indiantown Gap Military Reservation, Pennsylvania.

On 6 July 1970, the applicant was assigned to the 28th General Hospital at Fort Meade as a litter bearer.  On 21 October 1970, the applicant was charged with three counts of failure to go at the time prescribed to his appointed placed of duty.  Under Article 15, UCMJ, he was punished by reduction to pay grade E-2 (suspended), forfeiture of $20, and an oral reprimand.

On 5 November 1970, the applicant was AWOL 8-13 October 1970 and then absent from his place of duty from 1300 to 1345 hours on 23 October 1970.  For these violations, he received a summary court-martial sentence of reduction to pay grade E-1, forfeiture of $85, and confinement at hard labor for 30 days.

On 18 November 1970, the applicant’s commander recommended that he be discharged under Army Regulation 635-212 for, “Unfitness, an established pattern for shirking.”  The separation authority approved the recommendation and directed that the applicant be reduced to pay grade E-1 and be given an undesirable discharge, under conditions other than honorable, considering his conduct, two Articles 15, and three courts-martial.  The applicant was so discharged on 9 December 1970 with 1 year, 3 months, and 8 days creditable service and 131 days lost time due to AWOL and confinement.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided, in pertinent part, that members who established a pattern for shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

On 6 December 1973, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge.  The ADRB determined that the applicant had been properly discharged and denied an upgrade of the undesirable discharge.  
The applicant’s discharge was again review by the ADRB under the “Special Discharge Review Program” (SPDR) on 29 June 1977.  No error, impropriety, or matter of extenuation was found in the applicant’s undesirable discharge under the provisions of the SPDR.  Upgrade of the discharge was denied.

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.  There is no evidence of error or injustice in the applicant’s undesirable discharge for unfitness, an established pattern for shirking.  His military record shows that in a little over one year, the applicant had two Articles 15, three courts-martial, 131 days lost due to AWOL and confinement, two reductions in grade, and went AWOL to avoid duty in Vietnam.  The applicant was properly discharged in accordance with the regulations in effect at the time.

2.  The applicant was found medically qualified for service and was given a moral waiver when he was inducted.  The applicant’s contentions that these conditions are mitigating in his discharge are not accepted.

3.  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

__jm___  ___jd_____  ___cs___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038886	
SUFFIX		
RECON		
DATE BOARDED	20001012	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19701209	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.144.0134	Discharge under other than honorable	
2.		
3.		
4.		
5.		
6.