MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           10 January 2002
	DOCKET NUMBER:   AR2001060943

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine 		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 (UD) be upgraded to general, under honorable conditions (GD).

APPLICANT STATES:  That he did not believe in the Vietnam War and was mentally and physically abused for holding that belief.  He states that he still feels the Vietnam War was wrong, that the United States should not have been involved in Vietnam, and that the US Government now knows that the Vietnam War was wrong.

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

He enlisted in the Regular Army for 3 years on 16 January 1968.  Following all required military training, he was awarded military occupational specialty (MOS) 11B, Light Weapons Infantryman, and was assigned to the United States Army Overseas Replacement Station, Oakland Army Base, Oakland, California.

The applicant failed to report to his new duty assignment and, on 26 August 1968, he was listed as absent without leave (AWOL).  On 30 September 1968, he was dropped from the Army's rolls in a deserter status.  The applicant returned to military control at the Presidio of San Francisco, California on 1 October 1968.  He was assigned to the United States Army Special Processing Detachment, Presidio of San Francisco.

While at the Presidio of San Francisco, the applicant went AWOL on 1 October 1968 and remained absent until 11 October 1968.  He was again AWOL from 14 October 1968 to 21 December 1968 and from 30 January 1969 until 25 February 1969.

On 26 March 1969 at the Presidio of San Francisco, the applicant was found guilty by a special court-martial of three specifications of AWOL and three specifications of breaking restriction.  He was sentenced to confinement for 4 months and forfeiture of $75.00 pay per month for 4 months.  He was confined from 26 March to 3 April 1969 and 4 April to 23 April 1969.

On 24 April 1969, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 4 months and forfeiture of $75.00 for 4 months was suspended for 3 months.

On 12 May 1969, the applicant departed his unit in an AWOL status and remained absent until 3 August 1969.  On 5 August 1969, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 4 months and forfeiture of $75.00 pay for 4 months was vacated.  The applicant was confined from 5 August to 31 October 1969.

On 8 October 1969 at the Presidio of San Francisco, a psychiatrist from Letterman General Hospital evaluated the applicant.  The applicant was diagnosed as a schizoid personality and was cleared for separation.  The applicant was considered to be mentally competent, able to tell right from wrong and to adhere to the right, and to possess sufficient intellectual capacity to participate in any administrative procedure or court-martial.  It was noted that the applicant had a deep-seated resentment toward authority and was fearful of people in general, and that because of these feelings, he was a non-functional soldier.  The psychiatrist recommended that the applicant be discharged under the provisions of Army Regulation (AR) 635-212.

On 16 October 1969, the applicant was notified that he was being considered for a UD under the provisions of AR 635-212 for unfitness because of frequent incidents of a discreditable nature with military authorities.  On the same date, after consulting with legal counsel, the applicant waived consideration of his case by a board of officers and declined to submit a statement in his own behalf.

On 26 November 1969, the unit commander recommended the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged before expiration of his term of service.

On 27 November 1969, the applicant was AWOL from his unit for 1 day.

On 1 December 1969, the commander recommended approval and noted that the applicant had previously waived his right to a board of officers.  Also on 1 December 1969, the applicant departed his unit AWOL and remained AWOL until 17 December 1969.

On 8 December 1969, the appropriate authority approved the applicant’s discharge with a UD.  Accordingly, on 17 December 1969, the applicant was discharged after completing 11 months and 14 days of active military service and accruing 348 days of lost time.

Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a 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.

There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

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 that requirement.

2.  The Board carefully reviewed the applicant’s record of service and considered all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The Board finds that the character of the applicant's discharge is commensurate with his overall record.

3.  The Board found no evidence that the applicant was physically and/or mentally abused because of his beliefs and feelings about Vietnam.

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

___FNE _  __TSK __  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2001060943	
SUFFIX		
RECON		
DATE BOARDED	20020110	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19691217	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness – frequent incidents of a discreditable nature	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.