MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 February 2002
	DOCKET NUMBER:   AR2001060046

	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. P. A. Castle		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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: The applicant requests that his undesirable discharge be upgraded to honorable.

APPLICANT STATES: The applicant states that his discharge should be upgraded because at the time of his discharge he was suffering from mental depression.  He goes on to state that he has been receiving treatment for his problems at the Veterans Administration (VA) and has improved and cleaned up his act. 

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

The applicant’s military records show that he volunteered for induction in Seattle, Washington, on 17 December 1964.  He successfully completed his training at Fort Leonard Wood, Missouri, and was transferred to Hawaii on 3 June 1965, for duty as a supply clerk.

He was convicted by a summary court-martial on 10 March 1966, of failure to go to his place of duty.  His sentence consisted of a reduction to the pay grade of   E-2.

On 9 July 1965, nonjudicial punishment (NJP) was imposed against the applicant for reporting to guard duty in a dirty uniform, with a dirty weapon and in need of a shave.  His punishment consisted of restriction for 14 days.

On 17 March 1966, he was transferred with his unit to Vietnam.  He remained in Vietnam until he was returned to Oakland Army Base, California, for separation.  He was honorably released from active duty in the pay grade of E-4 on 3 December 1966, as an overseas returnee.  He had served 1 year, 11 months and 17 days of total active service.

On 15 December 1966, he enlisted for a period of 3 years and was transferred to Fort Eustis, Virginia.

On 19 May 1967, NJP was imposed against him for being absent without leave (AWOL) from 18 May to 19 May 1967.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and extra duty.

On 19 July 1967, he was convicted by a special court-martial of being AWOL from 1 June to 30 June 1967 and two specifications of failure to go to his place of duty.  He was sentenced to confinement at hard labor for 4 months, a reduction to the pay grade of E-1 and a forfeiture of pay. 

On 1 December 1967, the applicant underwent a psychiatric examination.  The examining psychiatrist indicated that the applicant was originally referred to him by the chaplain in connection with a question of depression and that he was undergoing the current examination for administrative board proceedings.  He also indicated that the applicant came from an unfortunate background, that he seemed bewildered, confused and depressed.  He diagnosed the applicant as having a Mixed Character Disorder (Inadequate and Passive-Aggressive Personality Features).  He recommended that the applicant be separated immediately for unsuitability rather than unfitness.

On 28 December 1967, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-212 for unsuitability.  He cited as the basis for his recommendation, the applicant’s habits and traits of character manifested by repeated commission of petty offenses.

On 12 February 1968, charges were preferred against the applicant for being AWOL from 8 December to 11 December 1967 and 15 December 1967 to 28 January 1968, when he was apprehended and was returned to military control.  The record is silent as to any punishment imposed for those AWOL offenses.

On 28 February 1968 he was admitted to the Army hospital at Fort Belvoir, Virginia, for drug ingestion (beer and 24 Valium tablets).  He was discharged from the hospital the following day. 

The facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a duly constituted report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 8 April 1968, under the provisions of Army Regulation 635-212 for unfitness, based on his involvement in frequent incidents of a discreditable nature with civil and military authorities.  He had served 9 months and 28 days of active service during his current enlistment and had 176 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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.

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 the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge was accomplished in conformance with applicable regulation with no violations of any of his rights.

2.  Accordingly, it appears that the type of discharge directed and the reasons therefore were appropriate under the circumstances.  There is no evidence that his depression caused his bad conduct.  He could tell right from wrong and adhere to the right as evidenced by his completion of training.

3.  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.

4.  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

___be ___  ___js ___  ___jed __  DENY APPLICATION

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

INDEX

CASE ID	AR2001060046	
SUFFIX		
RECON		
DATE BOARDED	2002/02/14	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/04/08	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.