MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 September 2000                   
	DOCKET NUMBER:   AR2000043993

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 honorable.

APPLICANT STATES:  That he understands why the Army gave him an undesirable discharge and agrees that his conduct after leaving Vietnam should have been better.  However, the quality of his service before and during his service in Vietnam, along with his post-service conduct, should be considered.  Supporting evidence is as listed on counsel’s attached letter.

COUNSEL CONTENDS:  That the applicant had honorable service before and while in Vietnam and did his time in prison for the civil conviction.  It would be in the interest of justice to grant him clemency in the form of a general, under honorable conditions, discharge.

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

He was born on 18 November 1945.  He enlisted in the Regular Army on          27 November 1962 for 4 years with a waiver for a juvenile conviction for vandalism and car theft (which occurred in 1957).  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

On 11 December 1963, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for conducting himself in a public place in a drunk and disorderly manner.

The applicant’s Personnel Qualification Record, DA Form 20, is not available.  An entry on an Enlisted Personnel Data form, 1AA Form 507, shows that he was assigned to the U. S. Army Pacific-Hawaii-Vietnam 21 April 1963 – 15 July 1965. However, on 24 May 1965 he was convicted by a summary court-martial at Fort Sheridan, IL of being absent without leave (AWOL) from 1 April – 2 May 1965.  While in Vietnam, the applicant was awarded the Air Medal 1st oak leaf cluster with “V” device on General Orders 811, U. S. Army Support Command, Vietnam dated 1 December 1964.  The 117th Aviation Company also authorized him to wear Gunner Wings while he was assigned to that unit.

On 2 November 1965, the applicant was convicted by a special court-martial of being AWOL from 2 September – 10 October 1965.

On 31 December 1965, the applicant was arrested by civil authorities for public drunkenness.

On 23 March 1966, the applicant was arrested by civil authorities for transporting a stolen vehicle over state lines (a violation of the Dyer Act).  He was sentenced to serve 3 months confinement in a Federal Prison, suspended.  
On 13 May 1966, the applicant accepted nonjudicial punishment under Article 15, UCMJ for dereliction of duty by sleeping in a vehicle while it was his duty to be performing proper maintenance.

On 17 June 1966, the applicant was arrested by civil authorities for producing another’s identification as his own.  

On 21 July 1966, the applicant departed AWOL.

On 23 July 1966, while still in an AWOL status, the applicant was arrested by civil authorities for larceny (transporting a stolen vehicle over state lines); three counts of storehouse breaking; and assault and battery, auto.  He was tried and convicted of storehouse breaking and his sentence was probated for five years without supervision.  He was tried and convicted of violation of the Dyer Act and sentenced for an indefinite period (not less than 60 days).  (The maximum confinement for this offense under the UCMJ is 5 years.)

On 24 February 1967, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court.

The applicant waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel, and elected not to submit a statement in his own behalf.

On 9 March 1967, the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge.

On 16 March 1967, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with an undesirable discharge (discharge under other than honorable conditions).  He had completed 3 years, 1 month and 15 days of creditable active service and had 352 days of lost time plus 110 days of lost time subsequent to his normal expiration term of service.  His Report of Transfer or Discharge, DD Form 214, shows that he was awarded the Air Medal (not the Air Medal 1st oak leaf cluster with “V” device) and does not list the National Defense Service Medal or the Republic of Vietnam Campaign Medal with device (1960).

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

On 27 March 1972, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

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.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering the applicant’s record of two convictions by courts-martial, his numerous other infractions of military discipline, and the ultimate reason for his discharge, the characterization of his discharge as undesirable is appropriate.  

3.  The Board takes cognizance of the applicant’s Vietnam service and his good post-service conduct; however, neither of these factors warrant the relief requested.  To grant the relief requested would not be fair to the many other young soldiers who returned from Vietnam and completed their enlistments honorably.

4. The Board does note that the applicant’s DD Form 214 does not show that he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal wit device (1960), and the Air Medal 1st oak leaf cluster with “V” device.

5.  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.

NOTE: The Army Review Boards Agency, Support Division, will be directed to administratively correct the applicant’s DD Form 214 by adding the National Defense Service Medal, the Republic of Vietnam Campaign Medal with device (1960), and the Air Medal 1st oak leaf cluster with “V” device.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jhl___  __clg___  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043993	
SUFFIX		
RECON		
DATE BOARDED	20000921	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19670316	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.