MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           28 August 2001
	DOCKET NUMBER:   AR2001053518

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		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 his general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge (HD) and that his rank be restored to that which he held prior to being court-martialed.

APPLICANT STATES:  In effect, that he proudly went to the Republic of Vietnam (RVN) and he faithfully served his country.  He was exposed to Agent Orange, hard liquor and drugs to include cocaine and marijuana.  He is in need of financial help due to the fact that he is a disabled American veteran with many illnesses.  He does not blame the Army for his problems or for his going into an absent without leave (AWOL) status.  He states in a letter written to the Board that he felt very disturbed when he returned from the RVN; he went out on the town and he just did not return as he was required.  He is truly sorry for his actions. 

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

That on 1 July 1965, he enlisted in the Regular Army for a period of 3 years and for an airborne assignment.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  On 8 November 1965, he waived an airborne assignment.  On 27 December 1965, he was assigned to the RVN.

On 15 October 1966, nonjudicial punishment (NJP) action was imposed against him under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty at the time prescribed on 9 October 1966.  His punishment included forfeiture of $20.00 pay per month for 2 months. 

On 10 December 1966, he returned to the United States.  On 10 January 1967, he was assigned to Redstone Arsenal, Alabama.

On 30 March and again on 5 April 1967, NJP action was imposed against the applicant for being drunk and disorderly on 19 March 1967 and for being absent without leave (AWOL) from 3-4 April 1967.  His punishments included reduction from pay grade E-4 to pay grade E-3, forfeiture of pay and extra duty. 

On 9 June 1967, NJP action was imposed against him for breaking restriction and for failure to pay a just debt on 3 June 1967.  His punishment included forfeiture of $30.00 pay for 1 month and 14 days' extra duty.

On 14 June 1967, he was convicted by a special court-martial of being AWOL from 27 April-25 May 1967.  His sentence included confinement at hard labor for 
3 months, reduction from pay grade E-3 to pay grade E-1 and forfeiture of 
$40.00 pay per month for 3 months.  He served in confinement from 
15 June–29 August 1967.
On 16 June 1967, the applicant’s commander notified him that he was being recommended for separation under the provisions of Army Regulation 635-212, for unfitness due to habits and traits of character manifested by repeated commission of petty offenses.

On 27 June 1967, he underwent a mental status evaluation and was diagnosed as having a passive aggressive personality.  His judgement was determined to be poor and he was not committed to any productive goals.  He was determined to be completely unmotivated for further military service.  It was believed that he would not adjust to future military duty and that additional rehabilitative efforts would be non-productive.  He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to participate in board proceedings.  

On 21 July 1967, the applicant authenticated a statement with his own signature in which he acknowledged that he had consulted with legal counsel.  He acknowledged that he had been advised of the basis for the contemplated action and its effects, and the rights available to him.  He also stated that he understood the consequences of receiving a UD.  He waived further representation by legal counsel and a personal appearance before a board of officers.  He did not submit a statement in his own behalf.

The applicant's chain of command recommended that he be separated with a UD under the provisions of Army Regulation 635-212 because of unfitness due to frequent involvement in incidents of a discreditable nature.

On 7 September 1967, competent authority approved the recommendation for discharge and directed the issuance of a UD under the provisions of Army Regulation 635-212, for unfitness.  On 12 September 1967, the applicant was discharged.  He had completed 1 year, 10 months and 29 day of active military service.  He also had 103 days lost time due to being AWOL and in military confinement.  

On 14 February 1967, the Army Discharge Review Board determined that the applicant was properly discharged, but not equitably discharged.  Therefore, the applicant’s discharge was upgraded to a GD under honorable conditions under the provisions of Army Regulations 635-200, due to frequent involvement in incidents of a discreditable nature with authorities.  His rank was restored to private, pay grade E-2 with a date of rank of 29 August 1967 (the date of his release from confinement).  

He was issued a new DD Form 214 to show that he was discharged in pay grade E-2 on 12 September 1967, with a GD.

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.

Under current standards Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or AWOL.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a GD under honorable conditions or a HD may be granted.

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.  This Board notes the upgrade taken by the ADRB on 14 February 1977.  This Board concurs with the findings and conclusions of the ADRB in its decision not to grant a fully honorable discharge.  The ADRB restored the applicant's rank to private, pay grade E-2, which was the rank that he held following his release from confinement.

3.  This Board determined that the applicant had many legitimate avenues through which he could have obtained assistance to help him work through his personal feelings without committing the offenses which led to the separation action under review.

4.  There is no evidence in the applicant’s record and he has provided none to indicate that he was ever exposed to Agent Orange or to any other chemical while he served in the military.

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

__JNS___  ___RTD_  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2001053518	
SUFFIX		
RECON		
DATE BOARDED	20010828	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19670912	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	A67.50	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6750	
2.		
3.		
4.		
5.		
6.