MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 November 2001
	DOCKET NUMBER:   AR2001059963

	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:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Curtis L. Greenway		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 a general discharge.

APPLICANT STATES:  In effect, that the charges for which he was discharged are no longer used as a basis to discharge Army personnel and because he suffered from Post Traumatic Stress Disorder (PTSD) he was unaware that he could apply for an upgrade of his discharge. 

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

He enlisted on 28 March 1966 for a period of 3 years and airborne training.  He successfully completed his training and was transferred to Fort Campbell, Kentucky.  He was advanced to the pay grade of E-3 on 26 September 1966.

On 3 March 1967, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a noncommissioned officer (NCO).  His punishment consisted of extra duty.  

He was advanced to the pay grade of E-4 on 27 June 1967.

On 29 June 1967, NJP was imposed against him for failure to go to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-3.

He was transferred to Vietnam on 18 September 1967 for duty as a supply handler.

On 16 June 1968, NJP was imposed against him for possession of an unauthorized weapon, ration card belonging to another soldier, failure to have an identification card in his possession and the wrongful possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

On 28 September 1968, he was convicted by a special court-martial of being absent without leave (AWOL) from 13 April to 26 July 1968, six specifications of failure to go to his place of duty, being disrespectful towards a commissioned officer, assaulting a commissioned officer, disobeying a lawful order from a commissioned officer and communicating a threat to a commissioned officer to kill him.  His punishment consisted of confinement at hard labor for 3 months, reduction to the pay grade of E-1 and a forfeiture of pay.

He departed Vietnam on 28 February 1969 and was transferred to Fort Carson, Colorado.

On 13 June 1969, he was convicted by a special court-martial of three specifications of failure to go to his place of duty, disobeying a lawful order from a commissioned officer, and disobeying a lawful order from an NCO.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.
The applicant underwent a neuropsychiatric examination on 3 July 1969 and was cleared for administrative separation.

The applicant’s commander notified the applicant on 10 July 1969, that he was recommending him for administrative discharge from the service for unfitness, under the provisions of Army Regulation 635-212.  After consulting with counsel, the applicant elected to waive his rights to a hearing before a board of officers and declined to submit a statement in his own behalf.

The appropriate authority (a major general) approved the recommendation and directed that he be furnished with an Undesirable Discharge Certificate.  

Accordingly, he was discharged under other than honorable conditions on 29 August 1969, under the provisions of Army Regulation 635-212 for unfitness, due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 2 years, 6 months and 12 days of total active service and had 216 days of lost time due to AWOL and confinement. 

On 25 February 1980, while he was incarcerated in a correctional facility in Illinois, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable.  He contended at that time that his discharge should be upgraded because the authority for his discharge no longer existed and that he should be paid back pay and allowances.  The ADRB determined that his discharge was proper and voted unanimously to deny his request on 5 August 1981.

The available evidence shows that the applicant was initially incarcerated on 27 May 1977 for a variety of felony offenses and that he is currently on parole.

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 and/or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

Army Regulation (AR) 635-212 was replaced by AR 635-200, chapter 13. It established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual could be found unfit for various types of misconduct that included frequent incidents of a discreditable nature with military authorities.  An undesirable discharge was then and is now normally considered appropriate for such misconduct.

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 applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his misconduct and his otherwise undistinguished record of 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 evidence that would satisfy this requirement.

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

__ao____  __wtm __  __clg____  DENY APPLICATION

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

INDEX

CASE ID	AR2001059963	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/11/01	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1969/08/29	
DISCHARGE AUTHORITY	AR635-212/UNFIT	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.