MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 January 2001                  
	DOCKET NUMBER:   AR2000039783

	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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 (GD) be upgraded so that there is no bar to Department of Veteran Affairs (VA) benefits.

APPLICANT STATES:  In effect, that his general discharge failed to qualify him for VA benefits.  He believes that he was suffering PTSD when he returned from Vietnam.  In support of his application he submits an Administrative Decision document from the VA dated 15 September 1999.

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

On 7 April 1967, the applicant enlisted in the Army for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 67N20 (UH-1 Helicopter Repairman).  The highest pay grade he achieved was pay grade E-4.

The applicant departed for an assignment to the Republic of Vietnam (RVN) in
October 1967.

On 16 August 1968, the applicant was convicted by a summary court-martial of failure to obey an order of a superior non-commissioned officer.  His sentence was a forfeiture of $25.00 pay for one month.

In October 1968, the applicant departed the RVN for an assignment at Fort Benning, Georgia.

The applicant’s official personnel record shows that while stationed at Fort Benning, GA, he was reported for being absent without leave (AWOL) from 7 to 8 March 1969.  However, the particulars surrounding the AWOL are missing from his record.

On 21 March 1969, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for breaking restriction.  His imposed punishment was a reduction to pay grade E-3 and 14 days restriction.

On 28 July 1969, the applicant was convicted by a special court-martial (SPCM) of being absent without leave from 2 to 7 July 1969 and of two specifications of willfully disobeying a lawful order from his superior non-commissioned officer.  He was sentenced to confinement at hard labor (CHL) for 4 months and a forfeiture of $82.00 pay per month for 6 months.  The applicant’s record shows that his CHL was suspended on 11 September 1969.

On 22 December 1969, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 
635-212, for unfitness.  The commander cited the applicant’s incidents of AWOLs, his character and behavior deficiencies, his court martial proceedings and his disregard for military authority as the reasons for his recommendation.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance, and representation before a board of officers.  He was afforded the opportunity to submit statements in his own behalf, but declined to do so.

On 9 January 1970, the applicant was again convicted by a SPCM of being AWOL from 8 October to 25 November 1969.  His was sentenced to CHL for 
4 months.

On 20 February 1970, the appropriate authority approved the recommendation and directed the issuance of a discharge under the provisions of Army Regulation 635-212, for unfitness, with an Undesirable Discharge Certificate.  

On 27 February 1970, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-212, for unfitness with a discharge under other than honorable conditions (UOTHC).  He completed 2 years, 5 months and 19 days of creditable active service and had 152 days of lost time.

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.  A discharge UOTHC was normally considered appropriate.

On 29 June 1977, the Army Discharge Review Board (ADRB) under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP) upgraded the applicant’s UOTHC discharge to a GD.

On 19 May 1978, the ADRB, as required by Public Law 95-126, reviewed the previous upgrading of the applicant’s discharge.  As a result of that review the board determined that the applicant did not qualify for upgrading under uniform standards for discharge.  Accordingly, his upgraded discharge under the DOD SDRP was not affirmed.  The board could not find a basis for relief under the Uniform Standards due to the applicant’s disciplinary record and lost time due to his AWOLs and military confinement.

Public Law 95-126 provided in pertinent part for a “Relook Program”.  All cases upgraded from under other than honorable conditions under the DOD SDRP program (and its extensions) had to be relooked and affirmed or not affirmed under uniform standards.

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 this requirement.

2.  The applicant’s discharge was upgraded to a GD by the ADRB in June 1977, under the provisions of the DOD SDRP.  On 19 May 1978, the ADRB, as required by Public Law 95-126, reviewed the applicant’s previously upgraded discharge.  As a result of that review it was determined that the applicant did not qualify for upgrading under uniform standards for discharge.  Accordingly, the applicant’s upgraded discharge under the DOD SDRP was not affirmed. 

3.  The Board concurs with the findings and conclusions of the ADRB in not affirming the applicant’s GD.  Therefore in view of the applicant’s disciplinary record and lost time, 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

__jns___  __mhm___  __jtm___  DENY APPLICATION

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

INDEX
CASE ID	AR2000039783	
SUFFIX		
RECON		
DATE BOARDED	20010118	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19700227	
DISCHARGE AUTHORITY	AR635-212 .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.