MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 February 2001
	DOCKET NUMBER:   AR2000049049

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Donald P. Hupman, Jr.		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 the Board affirm the upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

APPLICANT STATES:  In effect, that his undesirable discharge was upgraded to a general discharge under the SDRP.  However, because it was not affirmed, he is being denied veteran’s benefits.  He goes on to state that he was never notified that his discharge was not affirmed and that had he known, he would have appealed the decision.  He further states that he is now disabled and should receive favorable consideration of his request because he did serve in Vietnam.

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

He enlisted under the Buddy Plan in Gastonia, North Carolina on 2 February 1968 for a period of 3 years and training as an engineer heavy equipment operations and maintenance specialist.  He completed his training and was transferred to Fort Hood, Texas.  He was advanced to the pay grade of E-3 on 29 March 1969 and remained at Fort Hood until he received orders transferring him to Vietnam.

He failed to report for movement to Vietnam at Oakland, California as ordered and was reported as absent without leave (AWOL) on 5 May 1969.  He remained absent until he was returned to military control at Fort Bragg, North Carolina on 16 May 1969.  Nonjudicial punishment was imposed against him on 19 May 1969 for the AWOL offense and his punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

He was transferred to Vietnam on 23 May 1969 and was assigned to a construction engineer company. 

Nonjudicial punishment was imposed against him on 13 September 1969 for being absent from his place of duty.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.

On 8 October 1969 he was tried by a special court-martial for the wrongful possession of marijuana and being in an off-limits area.  He pled not guilty and was found not guilty of the charges against him. 

On 23 December 1969 he was convicted by a special court-martial of the wrongful possession of two ounces of marijuana, wrongfully communicating a threat to kill a noncommissioned officer (NCO), three specifications of failure to go to his place of duty and wrongful possession of barbiturates.  He was sentenced to reduction to the pay grade of E-1, confinement at hard labor for 6 months and a forfeiture of pay. 
On 22 February 1970 charges were preferred against the applicant for assaulting his first sergeant and disobeying three lawful orders.

The applicant underwent a psychiatric evaluation on 6 March 1970 and was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right.  The examining psychiatrist opined that given the applicant’s extremely negative attitude towards the military, he could not be rehabilitated and that the command had no choice but to separate him from the service.

On 9 March 1970, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-212 for unfitness.  He recommended that the applicant receive an undesirable discharge for unfitness because of his habits and traits of character manifested by a lack of regard for authority, repeated commission of petty offenses of a discreditable nature with military authorities, established pattern of shirking, failure to respond to repeated counseling sessions and a pattern of drug abuse.  He went on to further explain that the applicant had been assigned to six different units since his arrival in Vietnam and since his arrival in his current unit he had refused to do any work, had been apprehended in off-limits areas four times, had been apprehended at least twice in the compound with a loaded weapon (round chambered), which was against compound policy and safety regulations, that he had to be isolated away from other members of the unit in order to preserve order in the unit, that he disregarded authority, had been convicted by a special court-martial on one occasion and had nonjudical punishment imposed against him on three occasions and that he had an overall negative attitude towards the military.

After consulting with counsel, the applicant elected to waive consideration by and a personal appearance before a board of officers.  He also elected not to submit a statement in his own behalf.

The appropriate authority (a major general) approved the recommendation for discharge on 16 April 1970 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable condition on 4 May 1970, under the provisions of Army Regulation 635-212, for unfitness due to involvement in frequent incidents of a discreditable nature with military authorities.  He had served 2 years, 1 month and 29 days of total active service and had 34 days of lost time due to AWOL and confinement.  At the time of his discharge he was provided with instructions, which he acknowledged by his signature, on the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

On 11 July 1977, he applied to the ADRB for an upgrade of his discharge under the SDRP.  The ADRB panel that reviewed his case on 20 July 1977 determined that the applicant met the primary criteria of having satisfactorily completed a tour in Southeast Asia, that he had a record of satisfactory service for 24 months prior to discharge, that he had a record of good citizenship since discharge, that he was discharged for drug or alcohol abuse, and that there were contributing or extenuating circumstances that should be re-examined in the spirit of compassion.  The ADRB voted unanimously to upgrade his discharge to a general discharge under the SDRP.

On 26 July 1978, the ADRB reviewed the applicant’s discharge upgrade under the SDRP, under the provisions of Public Law 95-126.  The panel that reviewed his case opined that the applicant did not meet the criteria established under the SDRP, that he should not have previously been determined to have satisfactorily served in Southeast Asia or to have served satisfactorily for 24 months.  In view of the applicant’s’ record of service and his disciplinary record, the ADRB voted unanimously not to affirm the general discharge awarded under the SDRP.

On 12 November 1980, the applicant requested and was granted a personal appearance before the ADRB in Charlotte, North Carolina in March 1981.  The applicant failed to respond to the notification letter and his case was closed without action.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It 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.

On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

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.  The Board concurs with the findings and conclusions of the ADRB in its decision not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant’s administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  

2.  The evidence of record clearly shows that the applicant had an extensive disciplinary record, that he failed to respond to numerous counseling sessions and attempts at rehabilitation and that he exhibited a total disregard for military authorities.  Notwithstanding the original determination by the ADRB, the Board finds that his service was not satisfactory and, that his general discharge should not be affirmed by this Board as well.  

3.  The Board noted the applicant’s contentions, however, the Board found these factors do not provide a sufficient basis for relief.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  

4.  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 sufficient relevant evidence to demonstrate the existence of probable error or injustice.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jhl____  ___dh ___  ___gp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049049	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/08	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/05/04	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583	144.5000/A51.00	
2.  954	144.0020/A00.20	
3.		
4.		
5.		
6.