MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 January 2001                   
	DOCKET NUMBER:   AR2000048020

	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:

	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:  That his Report of Transfer or Discharge, DD Form 214, be corrected to show the correct amount of lost time and, in effect, that his discharge be upgraded.

APPLICANT STATES:  That he was told by his military attorney that he would lose no benefits if he would sign the papers and go home.  He was in Vietnam for two and one-half years.  He was only a child when he went to Vietnam and children do strange things.  He has lived with this for 30 years and his family has suffered enough.

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

He was born on 15 October 1949.  He volunteered for and was inducted into the Army on 13 April 1967.  He successfully completed basic combat training.  He failed to complete Signal School advanced individual training and was transferred to 11B (Light Weapons Infantry) training, which he successfully completed.

The applicant was absent without leave (AWOL) from 24 to 27 September 1967 for which he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).

The applicant was placed on orders for Vietnam with a report date to the Oakland Army Terminal of 1 December 1967.  The applicant was AWOL from 1 to          27 December 1967 for which he accepted NJP under Article 15, UCMJ.  He was AWOL again from 6 to 10 January 1968 for which he accepted NJP under Article 15, UCMJ.  

The applicant arrived in Vietnam in February 1968.  Orders dated 2 April 1968 awarded him the Combat Infantryman Badge.  Orders dated 11 April 1968 awarded him the Purple Heart.  

On 30 April 1968, the applicant was convicted by a special court-martial of disobeying a lawful command to accompany his unit on its mission.  

On 26 July 1968, the applicant was convicted by a special court-martial of disobeying a lawful command to join his unit.  He was sentenced to confinement at hard labor for 6 months, to forfeit $68.00 pay per month for 6 months and to be reduced to pay grade E-1.

On 20 March 1969, the applicant completed a separation physical examination and was found qualified for separation.  The applicant completed a mental status evaluation and was found to be neither psychotic or neurotic, to know the difference between right and wrong and able to adhere to the right.  He was cleared psychiatrically for whatever administrative action was deemed necessary.
On 25 March 1969, the applicant was convicted by a special court-martial of being AWOL from 30 September 1968 to 2 January 1969.  He was sentenced to confinement at hard labor for 6 months (so much in excess of one month suspended for 5 months), to forfeit $68.00 pay per month for 6 months and to be reduced to pay grade E-1.  

On 18 April 1969, the applicant was recommended for discharge under the provisions of Army Regulation 635-212 for unfitness, specifically for shirking.  On 25 April 1969, the applicant waived consideration of his case by a board of officers, waived personal appearance before a board of officers, did not submit a statement his own behalf, and waived representation by counsel.  He also initialed the statement acknowledging that he understood that, as the result of the issuance of an undesirable discharge under conditions other than honorable, he would be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  

On 28 April 1969, the applicant departed AWOL.  

On 27 May 1969, the appropriate authority approved the recommendation to discharge the applicant and directed that an Undesirable Discharge Certificate be issued.  

The applicant returned to military control on or about 2 December 1969.  He departed AWOL again on 9 December 1969 and returned to military control on   8 April 1970.

Commanding General, U. S. Army Vietnam message 091136Z April 1970 informed the Adjutant General Personnel Center that the applicant was transferred to Oakland CA “for 212 separation.”  The applicant’s separation orders issued by Headquarters, U. S. Army Personnel Center, Oakland, CA reflected that the applicant was separated for the good of the service under the provisions of Army Regulation 635-200.  

On 22 June 1970, the applicant was discharged with a characterization of service of under other than honorable conditions.  His DD Form 214, item 11c erroneously shows he was separated under the provisions of Army Regulation 635-200, chapter 6 (hardship or dependency).  Items 26a and 30 show that he had 684 days of lost time.

On 14 December 1979, the applicant’s lost time was recomputed and he was found to have only 515 days of lost time.  His DD Form 214 was amended on   17 December 1979 to reflect this change.  He was then credited with 1 year,       8 months and 5 days of creditable active service with 203 days of time lost prior to his normal expiration term of service and 347 days of time lost subsequent to his normal expiration term of service.  He was also credited with 11 months and 24 days of Vietnam service.

On 3 March 1981, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness or unsuitability.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was unlikely to succeed.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is 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.  While there is some question as to which regulation the applicant was finally discharged under, the Board concludes that his discharge recommendation and processing under the provisions of Army Regulation 635-212 for unfitness were administratively correct and in conformance with applicable regulations.  He
initialed the statement acknowledging that he understood that, as the result of the issuance of an undesirable discharge under conditions other than honorable, he would be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  Even if his final discharge had been processed as a discharge for the good of the service, in the absence of evidence to the contrary the Board presumes that he was properly informed that he would receive a discharge under conditions other than honorable and that the above conditions regarding benefits would still be valid.

2.  The Board is cognizant of the applicant’s young age at the time of his induction but this factor does not warrant the relief requested.  The Board notes that many young men were inducted and served in Vietnam and were able to honorably complete their terms of service.  The Board also notes that while the applicant may have remained in Vietnam for two and one-half years he was neither an effective combatant nor even under military control for more than half of that time due to his extensive AWOL and confinement time.

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

__jns___  __mhm___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048020	
SUFFIX		
RECON		
DATE BOARDED	20010118	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700622	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A50.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	100.00	
3.		
4.		
5.		
6.