MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           27 November 2001                  
	DOCKET NUMBER:   AR2001057673

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that he suffered a brain injury while he was on active duty.

In support of his application he submits Department of Veterans Affairs (DVA) medical treatment records.  Those records show that he is a homeless veteran who is being treated for anxiety and left ankle cellulitis, he has a history of being treated for gastritis and esophageal strictures, and he reported a history of “possible prior head trauma.”

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

He enlisted in the Regular Army on 3 March 1972.  On 28 May 1972, he was treated for a concussion which occurred when he allegedly dropped a bottle of after shave lotion when shaving, stepped on the broken glass, then fell.  

While in initial entry training, he departed Absent Without Leave (AWOL) on 3 July 1972 and remained AWOL until 19 July 1972.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for that absence.  

He was then given a rehabilitative transfer to another training company.  He departed AWOL from that company on 5 September 1972 and remained AWOL until 11 September 1972.  Special court-martial charges were preferred against the applicant for that period of unauthorized absence.  

On 26 September 1972, the applicant’s commander recommended that the applicant be discharged for unfitness.  The applicant was informed of the recommendation being made and was advised of the rights he had as a result of that recommendation.  The applicant waived all his rights.  The applicant was then given a mental status evaluation, which found that he was mentally responsible, but was depressed and had abnormal thought content.  The physician conducting the evaluation believed the abnormal thought content and depression were due to drug use.  

An intermediate commander recommended that if the request for discharge was accepted, the court-martial charges should be dismissed.

The commander’s recommendation was accepted and the applicant was issued an Undesirable Discharge Certificate on 31 October 1972.  He had 7 months and 7 days of creditable service.  He had never completed initial entry training and had never been awarded a military occupational specialty.

On 11 May 1976, the applicant was issued a Clemency Discharge.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, and indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgements).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  The clemency discharge did not effect the underlying discharge and did not entitle the individual to any benefits administered by the DVA.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.      

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  While the applicant had been treated for a concussion, there is no indication that his head injury caused him to depart AWOL.

2.  The mental status evaluation assessment that his thinking was abnormal based solely on drug use reinforces the conclusion that the applicant’s prior concussion did not cause, or otherwise affect, his behavior.
 
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

___aao__  ___jtm___  ___le ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057673	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011127	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.