MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 June 2002
	DOCKET NUMBER:   AR2002069969

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		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 discharge be upgraded.

APPLICANT STATES:  That his brother was shot in Vietnam while he was there. He was not allowed to see him so he went absent without leave (AWOL) to do so.  He was just a kid and very scared.  He has lived as a law-abiding citizen since his separation.  He provides his Report of Transfer or Discharge, DD Form 214, and related Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, DD Form 215, as supporting evidence.

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

He was born on 14 September 1950.  He enlisted in the Regular Army on         23 September 1968.  He completed basic combat training, advanced individual training, and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

On 20 November 1968, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.  

The applicant arrived in Vietnam and was assigned to Company B, 4th Battalion, 47th Infantry, 9th Infantry Division on 22 March 1969.

On 28 April 1969, the applicant accepted NJP under Article 15, UCMJ for missing unit movement.

On 2 May 1969, the applicant was convicted by a summary court-martial of missing, through design, unit movement.

On 8 May 1969, the applicant’s commander recommended he be barred from reenlistment.  The applicant elected to submit a rebuttal statement.  He stated that he could not do the field work because he got very tired and got headaches and felt he could do a better job somewhere that he did not have to do much walking.  He was weak and nervous because of what happened to his brother.  The bar was approved on 19 May 1969.

On 8 June 1969, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order to report to the Orderly Room.

On 2 July 1969, the applicant was convicted by a special court-martial of two specifications of missing unit movement and one specification of willfully disobeying a lawful command.

On 2 August 1969, the applicant was convicted by a special court-martial of willfully disobeying a lawful command from his superior noncommissioned officer.
On 16 September 1969, the applicant completed a psychiatric evaluation.  He was diagnosed as having an immature personality.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

Around October 1969, the applicant’s company commander initiated separation action on him under Army Regulation 635-212 for unfitness.  The commander cited the applicant’s habits and traits of character manifested by habitual shirking of duty and frequent incidents of a discreditable nature with military authorities.  

The applicant was advised by counsel of the basis for the contemplated separation action.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, elected not to make a statement on his behalf, and waived representation by counsel.

On 20 October 1969, the appropriate authority approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

On 31 October 1969, the applicant completed a separation physical examination and was found qualified for separation.

On 31 October 1969, the applicant was discharged, with an undesirable discharge, under other than honorable conditions, under the provisions of Army Regulation 635-212 for unfitness.  He had completed 1 year, 1 month, and 8 days of creditable active service and had no lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness. Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was unlikely to succeed.

On 6 January 1978, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The Board notes the applicant was 18 years old at the time he enlisted; however, many other young soldiers have been able to successfully complete their period of service even during periods of war.  There is no evidence of record to show the applicant was arbitrarily denied the opportunity to visit his brother or that he went AWOL in order to visit his brother.  It is also noted that the applicant’s record of disciplinary infractions began before he went to Vietnam.  Considering his record of disciplinary actions, the characterization of his discharge as undesirable, under other than honorable conditions was appropriate.

3.  The Board is cognizant of the applicant’s good conduct since his discharge but that factor does not warrant upgrading his discharge.

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

     JLP          AAO           RKS       DENY APPLICATION

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

INDEX

CASE ID	AR2002069969	
SUFFIX		
RECON		
DATE BOARDED	2002/06/04	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1969/10/31	
DISCHARGE AUTHORITY	AR 635-212 	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.