MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            8 February 2001                  
	DOCKET NUMBER:   AR2000041485

	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:

	Ms. Joann Langston 		Chairperson	
	Mr. George D. Paxson 		Member	
	Mr. Donald P. Hupman 		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 (UD) be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  In effect, then he was in the hospital for 17 days while assigned to Germany, then he was sent to the Republic of Vietnam (RVN).  He is requesting that his discharge be upgraded so that he may be able to obtain medical benefits.  Additionally, he states that his principal duty was that of a radar operator in Germany, however, when he was assigned to the RVN his principal duty was that of an Infantryman, serving as a “gernader.”

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

That prior to the enlistment under review, he completed an honorable period of service in the Regular Army (RA) from 5 February 1965-27 February 1966.  He was assigned to Germany from 23 June 1965-28 December 1966.  However, the available evidence does not show that he was hospitalized while he was assigned to Germany.

On 28 February 1966, the applicant reenlisted in the RA for 4 years and his previous military occupational specialty (MOS) 11B (Infantryman).  

On 11 August 1966, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed.  He missed bed check on 9 August 1966 and he failed to perform “kitchen police” on 
10 August 1966.  His punishment included 14 days of extra duty and restriction.

On 31 January 1967, he was assigned to the RVN.  On 1 April and on 11 June 1967, NJP actions were taken against him for sleeping on his post while he was performing the duties of a lookout on 26 March 1967 and for disobeying a lawful order of a commissioned officer not to walk across the runway due to hazards of incoming aircraft on 11 June 1967.  His punishments included reduction from pay grade E-4 to pay E-3 and forfeiture of pay.

His DA Form 20 (Enlisted Qualification Record) shows that on 2 July 1967, he received multiple wounds to both arms.  On 7 July 1967 he departed the RVN enroute to Japan.  On 9 July 1967, he was assigned to the 249th General Hospital in Japan in a patient status.  On 19 August 1967, he was assigned to the Medical Holding Company (MHC), Fort Ord, California in a patient status, where he remained until his discharge in March 1969. 

On 27 January 1968, NJP was imposed against the applicant for being absent without leave (AWOL) from the MHC from 8-23 January 1968.  His punishment included reduction from pay grade E-3 to pay grade E-2 (suspended), forfeiture 
of pay (suspended), and extra duty and restriction.  On 14 February 1968, the punishment was vacated when the applicant went AWOL from 
31 January-10 February 1968.

On 29 February 1968, the applicant was convicted by a summary court-martial of being AWOL from 31 January 1968-10 February 1968.  He was sentenced to be confined at hard labor for 14 days. 

He remained in military confinement from 29 February through 12 March 1968.  On 13 March 1968, he was returned to the MHC, Fort Ord in a patient status.  On the very same day, he departed AWOL and he remained AWOL until he was returned to military control on 30 July 1968.

On 16 April 1968, while he was AWOL, the Superior Court for the County of Los Angeles, California charged the applicant with burglarizing a store on 
24 March 1968.

On 3 July 1968, the Superior Court convicted him of burglary of the second degree, which was a felony.  He was sentenced to serve 30 days in the County Jail of the County of Los Angeles.

On 13 September 1968, the applicant underwent a mental status evaluation that determined that he suffered from an antisocial personality disorder.  His evaluation revealed that he enlisted with a waiver due to having a juvenile record. Further, he had used various illegal drugs to include “marijuana, reds, bennies, codine and heroin.”  He was determined to have no disqualifying mental disability warranting separation through medical channels.  He was free from mental defect, disease and derangement.  He was able to distinguish right from wrong and to adhere to the right and to understand and to cooperate in board proceedings.  He was cleared for administrative separation.

On 27 September 1968, an SF Form 89 (Report of Medical History) shows that he claimed that he suffered with frequent or severe headaches; eye trouble; ear, nose and throat trouble; hearing loss; cramps in his legs; a history of broken bones; a painful or “trick” shoulder or elbow; he was unable to perform certain motions; and he had been a patient in a mental hospital.  He also indicated that on 2 July 1967, he stepped on a booby trap and he had fragments removed from both his legs and arms. 

Notwithstanding this, on the same date, a SF Form 88 (Report of Medical Examination) show that he was found medically qualified for separation under the provisions of Army Regulation 635-206.

On 14 October 1968, he departed the MHC AWOL and he remained AWOL until 2 January 1969.  He was returned to military control and he was placed in 
pre-trial confinement.  He remained in military confinement from 3-31 January 1969.   

On 15 January 1969, the applicant’s commander notified him of his intent to recommend separation under the provisions of Army Regulation 635-206, due to a civil conviction.

On 4 February 1969, the applicant authenticated a document with his own signature in which he acknowledged that he had been advised of the basis for the contemplated action and its effects, and the rights available to him.  He stated that he understood the consequences of receiving a UD.  He waived a personal appearance before a board of officers. 

On 12 February 1969, the applicant’s commander recommended approval.
On 3 March 1969, competent authority approved the recommendation and directed the issuance of a UD under the provisions of Army Regulation
635-206, due to conviction by a civil court while on active duty. 

He was also AWOL from 23 February-27 February 1969, however, the available records do not show that he ever received any disciplinary action for this period of AWOL.

On 11 March 1969, the applicant was discharged with a UD, in pay grade 
E-2.  He had completed 2 years, 2 months and 20 days of active military service on the enlistment under review and he had 294 days lost time due to being AWOL and in confinement.  He had also completed 1 year and 23 days on his prior period of service.  His awards and decorations included the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge and the Expert Marksmanship Badge (Rifle).

On 4 February 1975, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge under the Department of the Defense Special Discharge Review Program (SDRP).  Upon relook under the same program on 12 July 1977, his request for upgrade of his discharge was again denied.

Army Regulation 635-206, then in effect, stated, in pertinent part, that an individual will be considered for discharge when an individual is initially convicted by civil authorities of an offense which involves moral turpitude, regardless of the sentence received or maximum punishment permissible under any code.  At the time, a UD was 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.  It is a commander’s prerogative to utilize military personnel where needed.  There is nothing in the applicant’s records and he has provided nothing that shows prejudicial treatment or discrimination within the various commands to which he was assigned.  He appears to have performed satisfactorily while serving in his primary MOS as an Infantryman for more than 5 months when he was assigned in the RVN.  However, he has an extensive record of misconduct after his return from the RVN.

3.  Conviction by civil authorities obligated military authorities to consider the 
applicant for discharge.  He had committed a felony.  Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army. 

4.  The applicant’s discharge process was administratively correct and it was in conformance with the applicable regulations then in effect with no indication of procedural errors which would have jeopardized her rights.

5.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  

6.  Entitlement to veteran’s benefits is not a matter under the purview of this Board, but rests with the Department of Veteran Affairs. 

7.  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

__jl_____  __gdp___  __dph ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041485	
SUFFIX		
RECON		
DATE BOARDED	20010208	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6100	
2.		
3.		
4.		
5.		
6.