MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 October 2000
	DOCKET NUMBER:   AR2000041384

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. William D. Powers		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 be upgraded to an honorable discharge.

APPLICANT STATES:  That he sustained an injury to his spine while he was in Vietnam.  He states that he is now disabled as a result of the injury and he cannot get the medical care that he needs with the type of discharge that he has. In support of his appeal, he submits letters from three of his neighbors attesting to his good post-service conduct.

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

On 23 April 1968, he enlisted in the Army at Fort Benning, Georgia for 3 years in the pay grade of E-1.  He successfully completed his training as a water supply specialist.  He was honorably discharged for the purpose of immediate reenlistment on 23 December 1968.  He had completed 8 months and 1 day of total active service.

On 24 December 1968, he reenlisted in the Army for 3 years in the pay grade of E-2.  He was transferred to Vietnam on 12 February 1969.

Nonjudicial punishment (NJP) was imposed against the applicant on 16 September 1969 for wrongfully assisting in the transferring of three cases of beer from an unknown location to the troop billets.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

On 27 October 1969, NJP was imposed against him for being absent from his place of duty.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

The available records show that the applicant was placed on a physical profile on 9 April 1970 for spondylolysis, low back pain.  The physical profile included no crawling, no stooping, no running, no jumping, no prolonged standing and no marching.  

He had NJP imposed against him again on 2 November 1970, for being absent without leave (AWOL) from 15 October 1970 until 21 October 1970.  His punishment consisted of a forfeiture of pay.

On 21 January 1971, NJP was imposed against the applicant for being AWOL from 14 December 1970 until 22 December 1970 and from 23 December 1970 until 6 January 1971.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

A criminal investigation was conducted on the applicant for the period covering 19 January 1971 through 8 March 1971.  The Criminal Investigation Division (CID) Report of Investigation indicates that a reliable informant had reported that the applicant was in possession of chocolate mescaline (a dangerous drug) and had offered to sell some to him.  The CID report further indicates that on 22 January 1971, the applicant sold two light brown colored tablets containing phencyclidine, a hallucinogenic drug, to an informant for $5.00.  The CID report indicates that on 24 February 1971, the applicant was apprehended and a subsequent search of his person and personal property failed to disclose anything of evidentiary value.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge, DD Form 214, indicates that the applicant was discharged on 21 May 1971, under the provisions of Army Regulation 635-212, for unfitness.  He had completed 3 years and 1 day of total active service and he had 28 days of lost time due to AWOL.  He was issued an Undesirable Discharge Certificate.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

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.  An undesirable discharge was normally 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 this requirement.

2.  The applicant’s contentions have been noted by the Board.  However, the inability to obtain medical treatment is not a sufficient justification for upgrading a discharge.  The evidence of record clearly shows that he had NJP imposed against him on four separate occasions for his acts of misconduct and he was investigated for the sale of drugs.

3.  The character of his discharge is commensurate with his overall record of service and in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.  His undesirable discharge appears to be appropriate considering the nature of his offenses and his otherwise undistinguished record of service.

4.  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

__mmd__  ___ao___  ___wdp__  DENY APPLICATION

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

INDEX

CASE ID	AR2000041384	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/26	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/05/21	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	583	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  592	144.5100	
2.  		
3.		
4.		
5.		
6.